Unit I: Indian Federalism

1.1 Federalism: Definition and Essential Characteristics

Federalism is a system of government in which power is divided between a central authority and various
constituent units of the country. Complex government mechanism for governance of the country. A
federation has minimum two levels of government. All these levels of governments enjoy their power
somewhat independent of the other. This refers to the existence of more than one level of government in the
country. It reconciles unity with multiplicity, centralisation with decentralisation and nationalism with localism.
Federalism lies on the idea that power and its nature are divided. In India, we have governments at the state level
and at the centre. Panchayati Raj is the third tier of government. The units in a federation act under the constitution
their functions and powers are governed and the area of operation can only be changed by an amendment in the
constitutional law.
Key features of Federalism in India
Federalism in India is an essential feature of the constitution that limits the government. The Supreme court
of India put down conditions that are necessary to be fulfilled for the constitution to be federal. This was
through a ruling in the case of State of West Bengal vs Union of India. The Supreme Court held that the
Indian Constitution is not federal entirely, and limitations are imposed on the state in many aspects, even
though there is a separation of powers. These conditions are:
1. The constitution is said to be supreme, and only the Parliament has the authority to alter it.
2. Distribution of the powers between the centre and the state in their respective areas.
3. Courts have the final authority in interpreting the constitution, and they would invalidate any action that
would violate it.
4. There are two or more levels (or tiers) of government.
5. Different tiers of government govern the same citizens, but each tier has its own jurisdiction in specific
matters of legislation, taxation and administration.
6. The jurisdictions of the respective levels or tiers of government are specified in the constitution.
7. The fundamental provisions of the constitution require the consent of both the levels of government.
8. Sources of revenue for each level of government are clearly specified to ensure its financial autonomy.

Features of Federalism / Key Features of Federalism

1. Division of Power: This is one of the important features of the federal constitution. The Division of
Power is done by the constitution itself. The constitution identifies the powers that are rested with the
union and the states. Both the governments at the union and states are independent in their charge. Items
of national importance like defence, foreign affairs, the currency of the country, etc. are union or central
subjects, and subjects like health, land agriculture fall under the domain of the states
2. Constitution being supreme: The constitution is said to be the main source of power to all the three
wings of Indian democracy – the legislative, the executive, and the Judiciary. Supremacy of the
constitution is important for the coordinated and smooth functioning of the democracy
3. Written Constitution: The federal constitution must be written and unambiguous. Without the written
constitution the demarcation of powers between the union and the states would be immensely difficult. It
would be a tough challenge to maintain constitutional supremacy if there cannot be a reference to a
written text. Federal Polity is indeed immensely complex, and clarity is essential
4. Constitutional Rigidity: since it is rigid it is easy to maintain its supremacy. Amendments to the
constitution can be made by simple majority, special majority, or special majority along with a
ramification of the Union
5. Judiciary: It is clear that in a federal structure consisting of the state and the centre, there would
obviously be contentious issues. To adjudicate in case of disputes there is a need for an independent
authority who can interpret the constitution authoritatively. This role is played by the Judiciary and in
case of any constitutional disputes, the stance taken by the judiciary is binding on all the parties
6. Bi-cameral legislature: India has bi-cameral legislature – it is one of the essential features of
Federalism in India. The Indian Parliament has the lower house (Lok Sabha) and the upper house (Rajya
Sabha). Any amendments need the approval of both houses. Few of the states also follow the bi-cameral
legislature. Examples of these states are Telangana, Andhra Pradesh, Karnataka, Bihar, among others
The fabric of Indian federalism stands on 3 pillars 1. Strong centre- with legislative financial and
emergency powers 2. Flexible federation- procedure to ament the federal portion in the constitution
that is not that rigid 3. Cooperative federalism- strengthened legislative and administrative practice
like USA, Canada, Australia

1.2 Nature of the Indian Constitution: Federal or Quasi-federal

The Indian Constitution is one of the written constitutions in the world. So, we should have an
understanding of the nature of the Constitution. What level should we give to our Constitution, whether it is
federal, unitary, or quasi-federal?
Some people call it federal, some unitary, and some quasi-federal. It is always a matter of debate, what is the
real nature of our Constitution. So, to understand the nature of the Constitution we shall discuss all the
features one by one.

Federal features of the Indian Constitution :

 Distribution of power: One of the most essential features of the federal Constitution is the distribution of
power. Between the center and the state. Both the governments are independent in their domains.
 Supremacy of the Constitution : It is also one of the essential features of the federal Constitution. The
Constitution is the supreme authority in the federal form of government, this means the Constitution
should be binding on the center as well as state government.
 Written constitution :To maintain the supremacy of the constitution it is indispensable to have a penned
Constitution. In the federal government, it is not possible to count on the understanding and convention
that could be created by misinterpreting and conflict between the center and the state.
 Rigidity : This feature is very meaningful for retaining the supremacy of the Constitution. It simply
means those features of the constitution deal with the status and power of the federal government, cannot
be amended easily, and those provisions of the Constitution do not concern the federal system, can be
amended easily.
 Authority of the court: This is also one of the essential features of the federal Constitution. Whenever
there is a conflict between the states and the center regarding the jurisdiction of powers, the court comes
in to make them ultra vires on the ground of excess power.

Unitary features of the Constitution:

Various features in the Indian Constitution show that the Indian constitution is unitary. Some of them are
listed below;
Article 1 of the Constitution describes India as a ‘union of States’, which means India is a union of various
states, and they cannot separate themselves from the union.
There is a concept of a single Constitution for the union as well as for the states. The States do not have their
separate constitutions and states cannot separate themselves from the union.
There is a provision for single citizenship in the Constitution for the whole of India. Every citizen of India
has equal rights no matter from which state he belongs. There is no provision for separate state citizenship in
the Constitution.
In India, the centre has been given the authority to alter the boundaries of any state and can make one state
out of the other. The centre can also change the name of any state. A recent example related to the alteration
of the boundary of the state is Andhra Pradesh and Telangana, where Telangana was carved out from
Andhra Pradesh.
As we all know the Indian Constitution is designed to work as a federal government in normal times, but at
the time of emergency, it works as a unitary government. The powers have been given to the President to
declare an emergency in either any part of India or the whole of India.
All the features that have been mentioned above show the unitary nature of the Indian constitution.

Indian Constitution as Quasi federal:

It is often a matter of discussion whether the Indian constitution is federal or unitary.

According to K.C. Where, in practice, the constitution of India is quasi-federal and not strictly federal.
The words ‘quasi’ means looks like so quasi-federal means looks like federal but in the true sense, it is not
completely federal. Quasi-federal refers to a system of government where the distribution of power between
the centre and the state is not equal. It is a federation with strong centre machinery referred to as a quasi-
federal state. The Constitution of India has not described India as a federation. On the other hand, it
describes India as a union of States.
From the above discussion, it can be understood that the Indian constitution is a harmonious mixture of both
unitary and federal features of the government.
In the words of D.D. Basu, the Constitution of India is neither purely federal nor unitary, but it is a
combination of both.
The makers of the constitution tried to establish a harmonious balance between the centre and the state.
Hence Dr. K.C. It rightly said that” The Indian constitution establishes, indeed a system of government
which is as the most quasi-federal,a unitary state with subsidiary federal features rather than a federal state
with unitary features.”
India is not a federation in the traditional sense. It combines the characteristics of a federal government with
those of a unitary government, which are referred to as non-federal characteristics. As a result, India is
classified as a semi-federal state. It is described as a “quasi-federal state” by Prof. K.C Wheare.

1.3 Division of Powers between the Centre and States

There is division of power on the following areas
a. legislative power (art.245- art.255)
b. Executive power (administrative pwr.) (art.256-art.263)
c. Financial Powers (art.268-art.293)
Legislative Powers-
1. The constitution of India provides for a federal system of government due to this there is a division of
legislative and administrative power between the central and state governments. It divides all the subjects
and matters into 3 lists:- Union list, State list and Concurrent list.
2. The Union list (97 subjects) describes the subjects under the control of the Central government. Only
Indian parliament can make laws on them and they apply on entire Indian territory like defence, foreign
policy, war and peace, banking, citizenship etc.
3. The State list (66 subjects) enumerates the subjects on which each State can legislate and such laws
operate within the territory of that State like public order, public health, local government, agriculture etc.
However, sometimes the Parliament can legislate even on subjects included in State list under circumstances
like emergency.
4. Along with the State Legislative Assemblies, the Parliament can make laws on the 47 subjects of the
Concurrent list. If there is a conflict between the Central and the State legislature, the Union law will
prevail.
Article 245- Extent of laws made by Parliament and by the Legislatures of States
Article 245 of the Indian constitution talks about the extent of laws made by Parliament and by the
Legislatures of States. It gives Parliament the power to make laws also gives the legislative body the power
to repeal them.

 245(1): Subject to the provisions of this Constitution, Parliament may make laws for the whole or any
part of the territory of India, and the Legislature of a State may make laws for the whole or any part of
the State
 245(2): No law made by Parliament shall be deemed to be invalid on the ground that it would have extra
territorial operation.
Article 246- Subject-matter of laws made by Parliament and by the Legislatures of States.
Constitution deals with the division of power between the Union and the States. It demarcates the powers of
the Union and the State by classifying their powers into 3

Article 246(1): Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make
laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution
referred to as the “Union List”).
Article 246(2): Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature
of any State also, have power to make laws with respect to any of the matters enumerated in List III in the
Seventh Schedule (in this Constitution referred to as the “Concurrent List”).

Article 246(3): Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws
for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh
Schedule (in this Constitution referred to as the “State List”).

Article 246(4): Parliament has the power to make laws with respect to any matter for any part of the territory
of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.
The Doctrine of “Pith and Substance” and the concept of “Colourable Legislation” are two fundamental
principles in constitutional law that help determine the true nature and validity of legislative actions. These
doctrines are particularly relevant in federal systems where the distribution of powers between the central
and state governments is delineated by a written constitution

DOCTRINE OF PITH AND SUBSTANCE

The Seventh Schedule of the Indian Constitution specifies the subject matters and divides the power
to make laws between the Centre and the State.
The Seventh Schedule deals with the Federal List containing 3 lists.
They are:
List I or the Union List where the centre has power to make Laws
List II or State List where the State has power to make Laws
List III or Concurrent List where the State and Centre have powers to make laws.

When there is a conflict between the subjects assigned to the Union and State governments under the Indian
Constitution, the Doctrine of “pith and substance” determine the true nature and character of a legislation.
Both Union and State legislature should keep within the area assigned to it and should not interfere into the
area reserved for other. The doctrine helps in determining which level of government has the authority to
make laws in cases where there is an apparent overlap or ambiguity” in legislative powers. The doctrine in
India is firmly supported by Article 246 of the Constitution and the Seventh Schedule. It was originated in
Canada in the case of Cushing vs Depoy. In general, the Parliament and state legislatures are supposed to
stay in their allocated sectors and not trespass on each other’s jurisdiction. If otherwise, the legislation would
be declared illegal by the judiciary. But first, it will apply the doctrine of pith and substance to determine the
true authority that the aforementioned piece of law comes under. To put it another way, the idea of pith and
substance is used to identify which category a piece of legislation belongs to. However, the powers
bestowed on each level are certain to intersect at some point. It is impossible to draw a clear line between
the competencies of separate legislatures as they will inevitably overlap at times.
The doctrine was first applied and upheld by the Supreme Court in the FN Balsara case

FN Balsara v. State of Bombay

The Bombay prohibition act prohibited sale and possession of liquor in the state, it was challenged on the
ground that it encroached on the import and export of liquor across custom frontier and its falls under the
subject of the centre. It was concluded the prohibition, purchase, use, possession, and sale of liquor shall
also impact the import. Court held doctrine of pith and substance of the Act fell under state list and not
under Union List even though it encroached upon union power of legislation.

Praful Kumar v. Bank of Commerce

The validity of Bengal Money Lenders Act that limited the amount and rate of interest recoverable by a
money lender on any loan this was challenged on the ground that its ultra vires of the Bengal Legislature and
it is related to promissory notes a central subject. The privy council held that the Bengal Money Lenders Act
was in pith and substance a law in respect of money lending and money lenders a state subject even though
it trenched incidentally on promissory note a central subject.

DOCTRINE OF COLOURABLE LEGISLATION

The idea of colourable legislation, however, comes into play if a legislative body isn’t allowed to establish
laws in a certain field but yet does so indirectly under the aegis of another legislation. To determine
whether or not they are qualified to enact a certain law, the idea of colourable legislation is used.The latin
proverb “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” (What cannot be done directly
should also not be done indirectly) is the source of the doctrine of colourable legislation.When a law-making
body abuses its authority and enacts something indirectly that it isn’t allowed to do directly, this theory has
been utilised to resolve concerns of capacity or competency to enact a law.
Further elaborating on the doctrine of colourable legislation, any legislation is said to be colourable when
the legislature passes legislation that is outside of their competence or the powers granted by the constitution
by camouflaging it to look to be within their competency to legislate the laws. In layman’s words, the
concept states that if the legislature is not expressly or implicitly granted the right to legislate, then they
cannot go beyond their competent powers and indirectly pass such laws. This is associated with the doctrine
of colourable legislation.

State of Bihar v. Kameshwar Singh

Law had been declared invalid on grounds of colourable legislature. The Bihar Land Reforms Act was held
void on the ground that though it purported to lay down principle for determining compensation yet in
reality it did not lay down any such principle and thus indirectly sought to deprive the petitioner of any
compensation.

Article 247- Power of Parliament to provide for the establishment of certain additional courts.
Parliament may by law provide for the establishment of any additional courts for the better administration of
laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List.

Article 248- Residuary powers of legislation.

Parliament has exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or State List. Such power shall include the power of making any law imposing a tax not
mentioned in either of those Lists.
The Union parliament or Central possesses some residuary powers which means that it can make laws on all
those matters which are not mentioned in any of the two lists-State or the Concurrent.

Article 249- Power of Parliament to legislate with respect to a matter in the State List in the national
interest. Council of States (Rajya Sabha) has declared by resolution supported by not less than two-thirds of
the members present and voting that it is necessary which indicates that Parliament should make laws with
respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for
Parliament to make laws for the whole or any part of the territory of India with respect to that matter while
the resolution remains in force.
A resolution passed under clause (1) shall remain in force for such period not exceeding one year. If the
resolution is renewed such resolution shall continue in force for a further period of one year from the date on
which under this clause it would otherwise have ceased to be in force.
A law made by Parliament shall cease to have effect for a period of six months after the resolution has
ceased to be in force, except if the reason why the law was formed is fulfilled or that law was omitted to be
done before the expiration of the said period.

Article 250- Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of
Emergency is in operation.
Parliament, while Proclamation of Emergency is in operation, have power to make laws for the whole or any
part of the territory of India with respect to any of the matters enumerated in the State List.
A law made by Parliament which Parliament would not issue but did for the issue of a Proclamation of
Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on
the expiration of a period of six months after the Proclamation has ceased to operate, except as respects
things done or omitted to be done before the expiration of the said period.

Article 251- Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by
the Legislatures of States
Nothing in articles 249 and 250 shall restrict the power of the Legislature of a State to make any law for
which it has been empowered under this Constitution. But if any provision of a law made by the Legislature
of a State is repugnant or is inconsistent to any provision of a law made by Parliament, the law made by
Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and
the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the
law made by Parliament continues to have effect, be inoperative.

Article 252- Power of Parliament to legislate for two or more States by consent and adoption of such
legislation by any other State.
If it appears to the Legislatures of two or more States that it is desirable that any of the matters with respect
to which Parliament has no power to make laws for the States except as provided in articles 249 and 250
should be regulated in such States by Parliament by law. Then a resolution to that effect is passed by all
State Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter
accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted
afterwards by resolution passed in State Legislature. Any Act so passed by Parliament may be amended or
repealed by an Act of Parliament and ny act of Legislature of that State.

Article 253- Legislation for giving effect to international agreements

Parliament has power to make any law for the whole or any part of the territory of India for
1. implementing any treaty, agreement or convention with any other country or countries or
2. implementation of any decision made at any international conference, association or other body

Article 254- Inconsistency between laws made by Parliament and laws made by the Legislatures of States.
If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to
one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law
made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the
case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the
extent of the repugnancy, be void.
Where a law made by the Legislature of a State with respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or
an existing law with respect to that matter, then, the law so made by the Legislature of such State shall
prevail, if it has been reserved for the consideration of the President and has received his assent but only in
that state.
**Provided that nothing in that clause prevents the Parliament from enacting any law at any time with
respect to the same matter including a law adding to, amending, varying or repealing the law so made by the
Legislature of the State.

Deep Chand Case

Validity of UP Transport Service Act was involved. By the Act the State was authorised to make the scheme
for nationalisation of Motor Transport in the state. The law was necessitated because the Motor Vehicle Act
did not contain any provision for the nationalisation of Motor Transport Service. Later in 1956 the
Parliament with a view to introduce a uniform law amended the Motor Vehicles Act and added a new
provision enabling the state gov. to frame rules of nationalisation of Motor Transport. Court held that since
both Union and State Law occupy the same field the State Law was void to the extent of repugnancy to the
Union Law

1.4 Emergency Provisions: -

It has been taken from Germany’s Constitution
a) National Emergency under Article 352
b) State Emergency under Article 356
A state of emergency in India refers to a period of governance that can be proclaimed by the President of
India during certain crisis situations. Under the advice of the cabinet of ministers, the President can overrule
many provisions of the Constitution, which guarantees Fundamental Rights to the citizens of India.
The emergency provisions are contained in Part XVIII of the Constitution of India, from Article 352 to
360. These provisions enable the Central government to meet any abnormal situation effectively.
The Constitution stipulates three types of emergencies-
National Emergency
Constitutional Emergency
Financial Emergency

1962 to 1968: the president was Sarvepalli Radhakrishnan During the India-China war, when “the security
of India” was declared as being “threatened by external aggression” art.352. Sino-Indian war started with
simultaneous Chinese offensives in Ladakh and along the McMahon Line. The war ended with a Chinese
ceasefire a month later and a defeat for India.

1971: During the Indo-Pakistan war art.352. V.V.Giri was the president at that time.
1975 to 1977: Under controversial circumstances of political instability. The emergency was declared on the
basis of “internal disturbance” art.352. Fakhruddin Ali Ahmed was the president during the third emergency.
Indira Gandhi ‘advised’ the then President of the country Fakhruddin Ali Ahmed to declare a state of
internal emergency in India using Article 352. The Emergency was declared without warning on the
midnight of 25th June and the country woke up to the death of democracy.

Naga peoples movement of human rights v. UOI

the court dealt with the constitutionality of the Act. Emphasis was laid on the need to strike a fair balance
between citizens’ rights and public order.

NATIONAL EMERGENCY
National emergency can be declared on the basis of war, external aggression or armed rebellion. The
Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type.
Grounds of declaration:
Under Article 352, the president can declare a national emergency when the security of India or a part of
it is threatened by war or external aggression or armed rebellion.
The President can declare a national emergency even before the actual occurrence of war or armed
rebellion or external aggression
When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it is known
as ‘External Emergency’. On the other hand, when it is declared on the grounds of ‘armed rebellion’, it
is known as ‘Internal Emergency’. This term ‘armed rebellion’ is inserted from
the 44th amendment. Before this term it was known as internal disturbance.
Example:
If India and Pakistan openly accept that they will use armed forces against each other is simply war.
If there is no formal declaration that there will be armed forces used against a country is External
aggression.
And if because of these two grounds an emergency is proclaimed as an external emergency.
Article 352
1. If the President is satisfied that a grave emergency exists whereby the security of India or of any
part of the territory thereof is threatened, whether by war or external aggression or[armed
rebellion], he may, by Proclamation, make a declaration to that effect 2 [in respect of the whole of
India or of such part of the territory thereof as may be specified in the Proclamation]
2. A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation.
3. The President shall not issue a Proclamation under clause (1) unless the decision of the Union
Cabinet comes (that is to say, the Council consisting of the Prime Minister and other Ministers of
Cabinet rank appointed under article 75) that such a Proclamation may be issued and that has to
be communicated to him in writing.
4. Every Proclamation issued under this article shall be laid before each House of Parliament and
shall, cease to operate at the expiration of one month unless before the expiration of that period it
has been approved by resolutions of both Houses of Parliament. All proclamations except where it
is a Proclamation revoking a previous Proclamation.
 **Provided, that if any such Proclamation (not being a Proclamation revoking a previous
Proclamation) is issued at a time when the Lok Sabha has been dissolved, or the dissolution of the
Lok Sabha takes place during the period of one month referred to in this clause, and if a resolution
approving the Proclamation has been passed by the Rajya Sabha, but no resolution with respect to
such Proclamation has been passed by the Lok Sabha before the expiration of that period, the
Proclamation shall cease to operate at thirty days from the date on which the Lok Sabha first sits
after its reconstitution, unless before the expiration of the said period of thirty days a resolution
approving the Proclamation has been also passed by the Lok Sabha.
5. A Proclamation so approved shall, cease to operate on the expiration of a period of six months
unless revoked
**Provided that if and so often as a resolution approving the continuance in force of such a
Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked,
continue in force for a further period of six months from the date on which it would otherwise
have ceased to operate under this clause: that if any such Proclamation (not being a Proclamation
revoking a previous Proclamation) is issued at a time when the Lok Sabha has been dissolved, or
the dissolution of the Lok Sabha takes place during the period of one month referred to in this
clause, and if a resolution approving the Proclamation has been passed by the Rajya Sabha, but no
resolution with respect to such Proclamation has been passed by the Lok Sabha before the
expiration of that period, the Proclamation shall cease to operate at thirty days from the date on
which the Lok Sabha first sits after its reconstitution, unless before the expiration of the said
period of thirty days a resolution approving the Proclamation has been also passed by the Lok
Sabha.
6. For the purposes of clauses (4) and (5), a resolution may be passed by either House of Parliament
only by a majority of the total membership of that House and by a majority of not less than two-
thirds of the Members of that House present and voting.
7. President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such
Proclamation if the Lok Sabha passes a resolution disapproving, or, as the case may be,
disapproving the continuance in force of, such Proclamation.
8. Where a notice in writing signed by not less than one-tenth of the total number of members of the
Lok Sabha showing their intention to move a resolution for disapproving, or, as the case may be,
for disapproving the continuance in force of, a Proclamation issued under clause (1) a special
sitting of the House shall be held within fourteen days from the date on which such notice is
received by the Speaker, if the House is in session, or, as the case may be, by the President if the
House is not in session, for the purpose of considering such resolution.

Article 353- Effect of Proclamation of Emergency.

Effects on the centre-state relations:
While a proclamation of Emergency is in force, the normal fabric of the Centre-State relations
undergoes a basic change. this can be studied under three heads:
Executive: Centre becomes entitled to give executive directions to a state on ‘any’ matter
Legislative: The parliament becomes empowered to make laws on any subject mentioned in the state
list, the president can issue ordinances on State subjects also, if the parliament is not in session. The
laws made on state subjects by the parliament become inoperative six months after the emergency has
ceased to be in operation.
Financial: the president can modify the constitutional distribution of revenues between the centre and
the states.
the Parliament has power to make laws with respect to any matters of conferring powers and imposing
duties, upon the Union or officers and authorities of the Union even though it is not enumerated in the
Union List. Power of state government shifts to the centre during national emergency federal tendency
shifts to central tendency.

Article 358 and Article 359

Effect on fundamental rights:
Suspension of Fundamental rights under Article 358:
According to Article 358, when a proclamation of National Emergency is made, the six fundamental
rights under article 19 are automatically suspended. Article 19 is automatically revived after the
expiry of the emergency.
The 44th Amendment Act laid out that Article 19 can only be suspended when the National
Emergency is laid on the grounds of war or external aggression and not in the case of armed rebellion.
Suspension of other Fundamental Rights Under Article 359:
the President is authorised to suspend, by order, the right to move any court for the enforcement of
Fundamental Rights (except articles 20 and 21 these two articles can’t be suspended even during
emergency) during a National Emergency. Thus, remedial measures are suspended and not the
Fundamental Rights. The suspension of enforcement relates to only those Fundamental Rights that
are specified in the Presidential Order.The suspension could be for the period during the operation of
emergency or for a shorter period. The Order should be laid before each House of Parliament for
approval.
Amendments
38th amendment
Earlier the president could be questioned on ground of judicial review. Now after amendment as the
clause 5 of article 352 mentions the president’s reason is final and conclusive even that can be
questioned under judicial review.
42nd amendment
Brought during emergency
*Any amendment by the parliament can’t be questioned
*The state governments power shifts to the central government
* Socialist, secular, integrity added to constitution
*Reduction in powers of judiciary and courts
44th amendment
Was bought to change the 42nd amendment
*Check over the powers of parliament
*Made it difficult to proclaim emergency
*Internal disturbance word changed to armed rebellion
*Simple majority to special majority
*Article 20 and 21 cannot be suspended during emergency

ADM Jabalpur Case, famously known as the Habeas Corpus Case, can be traced back to the time of
the ‘Emergency’ in India. ADM Jabalpur Case which emerged during the period of emergency in India
(1975-1977), dealt with the fundamental question of individual liberty and the power of the state during
times of emergency. Habeas Corpus can’t be issued by courts during emergency because all the
fundamental rights are suspended during emergency. The Supreme Court, held the Constitution above
individual security and liberty held that during an Emergency, the right to life and personal liberty of
individuals could be suspended and that courts could not interfere with the detention of individuals under
preventive detention laws like MISA (The Maintenance of Internal Security Act (MISA) was a
controversial law passed by the Indian parliament in 1971 giving the administration of Prime
Minister Indira Gandhi.

Maneka Gandhi v. Union of India, which stands as a bulwark of the Right of Personal Liberty granted
by Article 21 of the Constitution, started when the passport of the petitioner in this case, was impounded
by the authorities under the provisions of the Passport Act. This arbitrary act of impounding the passport
eventually led to the pronouncement of a unanimous decision by a seven-judge bench of the apex court.
The judgment’s most important feature was the interlinking it laid down between the provisions of
Articles 19, 14 and 21. Through this link, the supreme court made these provisions inseparable and into a
single entity. Now, any procedure has to meet all the requirements mentioned under these three articles to
be held valid. As a result, this judgement enlarged the scope of personal liberty significantly and
preserved the fundamental & constitutional right to life.

Minerva Mills Case

No bar to judicial review of the validity of a Proclamation of Emergency issued by President under
Article 352(1). Merely because a question has political complexion, it is no ground why the court should
shrink from performing its duty under constitution if it raises an issue of constitutional determination.
Court cannot go into question of correctness or adequacy of the facts and circumstances on which the
satisfaction of the government is based. The satisfaction of President is a condition precedent if shown
that there is no satisfaction of the President at all the exercise of power is constitutionally invalid. Where
at all satisfaction is malafide or absurd or based on an irrelevant ground it would be no satisfaction at all
it would be liable to be challenged before court.

Mohammad Yakub v. State of Jammu

The SC held the Presidents order under Article 359 (1) was not law under meaning of article 12 thus
validity could not be challenged with reference to Part III. Thus, if the suspends article 14 it cannot be
challenged on the ground that it is discriminatory to article14. The SC overruled its own decision in
Ghulam Sarwar v. UOI wherein it had held the Presidential Order under Article 359(1) could be
challenged as discriminatory.
STATE EMERGENCY

As per Article 356, if the President after receiving a report from the Governor of a State or otherwise is
satisfied that such a situation exists where the Government of a State cannot be carried in accordance with the
provisions of the Constitution, he may issue a Proclamation.
Article 355- Duty of the Union to protect States against external aggression and internal disturbance
It shall be the duty of the Union to protect every State against external aggression and internal disturbance and
to ensure that the Government of every State is carried on in accordance with the provisions of this
Constitution.

Article 356- Provisions in case of failure of constitutional machinery in States.

1. If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation
has arisen in which the Government of the State cannot be carried on in accordance with the provisions of
this Constitution, or if the state doesn’t follow the direction of the centre the President may by
Proclamation. Once the proclamation is issued, the President can declare that the powers of the State
government shall be exercised by the Governor of the State or by any other person appointed by him.
2. Any such Proclamation may be revoked or varied by a subsequent Proclamation
3. Every Proclamation under this article shall be laid before each House of Parliament and shall, except where
it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months
unless before the expiration of that period it has been approved by resolutions of both Houses of
Parliament.
**Provided, that if any such Proclamation (not being a Proclamation revoking a previous Proclamation)
is issued at a time when the Lok Sabha has been dissolved, or the dissolution of the Lok Sabha takes
place during the period of one month referred to in this clause, and if a resolution approving the
Proclamation has been passed by the Rajya Sabha, but no resolution with respect to such Proclamation
has been passed by the Lok Sabha before the expiration of that period, the Proclamation shall cease to
operate at thirty days from the date on which the Lok Sabha first sits after its reconstitution, unless before
the expiration of the said period of thirty days a resolution approving the Proclamation has been also
passed by the Lok Sabha.
4. A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of 1
[six months from the date of issue of the Proclamation]: Provided that if and so often as a resolution
approving the continuance in force of such a Proclamation is passed by both Houses of Parliament,
the Proclamation shall, unless revoked, continue in force for a further period of 2 [six months] from
the date on which under this clause it would otherwise have ceased to operate, but no such
Proclamation shall in any case remain in force for more than three years
Approval + Duration
Governor sends a report to the president to proclaim emergency and the president being satisfied
proclaims emergency on 1 st feb 2019(example) so the duration of emergency is 2 months that’s till 1 st apr
2019. The day the emergency starts the same day it goes for approval (by rajya sabha and lok sabha=
simple majority [50% of total members]) to the parliament if approved valid for 6 months from date of
issuance if not approved then only valid for 2 months.
The state emergency can last max till 3 years but it needs approval every 6 months from the parliament.
After 1 year of emergency still if president feels like the emergency must continue these 2 conditions
must be fulfilled:
1. There must be national emergency in operation in india article 352
2. The election commission must certify that the election to the state legislative assemblies cannot
take place.
Only the state emergency can extend to 1 year

SR Bommai v. UOI
On Dec 15, 1992, Presidents Rule was imposed in MP, Himachal Pradesh and Rajasthan and Assemblies
were dissolved on the ground that these States were not sincerely implementing the ban imposed by
Centre on religious organisation. The main ground was the CM of these states has connection with the
organisation that was banned by the centre, secondly these governments encouraged the Kar Sevaks to go
to Ayodhya. This created mere suspicion that they were not following the ban there was no proof that
they were not following Centre’s directions. The 3 Governors more or less identical reports in 24 hours.
This was clear abuse of Art. 356 where duly elected Governments were dismissed merely on ground of
suspicion.

Rameshwar Prasad v. UOI

Presidents Rule in State of Bihar on the ground that no party had the required number of majorities of
122 MLA’s in a 243 member assembly. A five-judge Bench headed by CJI D Y Chandrachud. the
President’s Proclamation of dissolving the state Assembly unconstitutional based on irrelevant grounds.
The governor misled the centre recommending dissolution of the state they should have verified before
taking a step. The governor acted in undue haste in sending his report. The governors report had fanciful
assumptions which could have been destructive to the democracy. The extreme action of Article 356
can’t be justified on mere personal opinion of the governor. This was a fully unconstitutional act the issue
of defection has to be dealt in accordance with law as no such power is given to the Governor.
Difference between Articles 352 and 356
Article 352 Article 356
State Legislature and Executive continue to function the executive, as well as legislative power, is vested
but the Centre gets the concurrent powers of the in the Centre and the State Legislature is dissolved
legislation and administration in the matters of the
State.
the relationship between the Centre and all the States the relationship between the Centre and the State in
changes which President’s Rule is applied undergo a change

Difference

National Emergency State Emergency

Article 358 and 359 states that all fundamental rights No impact on fundamental rights.
are suspended except article 20 and 21

Ground- war, armed rebellion and external Grounds- article 356 and 365 external aggression,
aggression internal rebellion, disobey centre directions

Proclaimed by president and after 1 month approval Proclaimed by president and after 2 months approval
by parliament by special majority by parliament by simple majority
 Emergency applied for 6 months after approval Emergency applied for 6 months after approval

No limit for duration of emergency 3 years is the max limit

President + Lok Sabha = revocation President = revocation

The state executive and state legislature are not The state executive and state legislature are
suspended but their substantial power goes to the suspended or dissolved all executive powers in
parliament. Gives direction to state executive and president’s hands and he can delegate power to
makes law on behalf of state legislature governor and legislative power to legislature.

1.6 Special Status of Jammu and Kashmir

Jammu & Kashmir was an Indian state earlier (now a Union Territory) that was located at the northern point
of India and was ruled by a Maharaja. Both the nations of India and Pakistan moved to assert their respective
portions of the state. But still, the major portion of the original state of Jammu & Kashmir remains within
India. The people of Jammu and Kashmir, lived under a distinct set of laws and regulations, including those
connected to citizenship, possession of property and fundamental rights, as compared to other Indians.
In 1947, at the time of independence, the State of Jammu and Kashmir decided not to join either Pakistan or
India. India welcomed this decision, but Pakistan attempted to annex the State militarily. The Maharaja s ought
Indian help to save his territory and people who were being killed and looted by the Pakistani militants. The
then Prime Minister Jawaharlal Nehru accepted Jammu & Kashmir’s accession to India. The Maharaja signed
the “instrument of Accession” with certain concessions for the autonomy of the State. This special status of
the State was enshrined in Article 370 of the Indian Constitution.
What is Article 370 of the Constitution of India?
Article 370 was laid down in the Indian Constitution on October 17th, 1949, as an ‘interim provision’, which
exempts Jammu and Kashmir from the Indian constitution and permits it to formulate its own constitution
and limiting the Indian parliament’s legislative powers in the state. In brief, it granted special status to the
state, offering the J&K legislature free rein to formulate its own laws, except in the areas of
communications, defense, finance and external affairs. As a consequence, Jammu and Kashmir possessed its
own constitution, flag and penal code
Special Status of Jammu & Kashmir: The Notable Provisions and Features
● The state of Jammu and Kashmir possesses its own constitution apart from the Indian constitution.
● This state follows ‘dual citizenship’ - Citizenship of Jammu and Kashmir and India.
● The residual power of the state lies with the Jammu and Kashmir legislature and not the parliament of
India. Except for defense, foreign affairs, finance and communications, the Indian parliament requires the
state government’s consent for applying all other laws.
● The national emergency proclaimed on the ground of war or external aggression shall have an automatic
extension to the state. The national emergency declared on the grounds of military rebellion, shall not have
an automatic extension to Jammu and Kashmir.
● The Governor of the State is to be nominated only after consultation with the Chief Minister of the state.
● Fiscal or financial emergency under Article 360 of Indian constitution cannot be levied on the state.
● Directive Principle of State Policy and fundamental duties embodied in the Indian constitution are not
pertinent to Jammu and Kashmir.
● Apart from the president‘s rule, the governor’s rule can also be enforced on the state for a period of utmost
six months.
● The preventive detention laws as cited in Article 22 of the Indian constitution do not have an automatic
expansion to the state.
● The name, frontier or territory of the state of Jammu and Kashmir cannot be altered by the Parliament
without the consent of the state legislature.
● Article 19(i) (f) and 31 (2) of Indian constitution have not been canceled for this state and the ‘Right to
property’ stands ensured to the people of Jammu and Kashmir.
Special status of Jammu and Kashmir Then and Now
J&K before the abolition of Article 370
Special status
Dual Citizenship - Citizenship of India and Jammu
and Kashmir.
Separate flag.
The Right to Information act is not applicable.
Right to education was not applicable in J&K
earlier.
Citizens from other parts of India were not allowed
to buy property within J&K.
J&K after the abolition of Article 370
No Special status
Single Citizenship - Citizenship of India.
No separate flag.
The Right to Information act is applicable
Right to education is now applicable in J&K
Citizens from other parts of India are now allowed
to buy property within J&K.

The Supreme Court of India has ruled in the case of Sampat Prakash vs State Of Jammu & Kashmir &
Another that Article 370 has gained and is a permanent provision. In case, the article is considered to be
temporary then the state of Jammu and Kashmir and the rest of India share a temporary relationship, and the
abrogation of the article would take Kashmir's position back as it was in 1947. Sampat Prakash, the Court
also made a significant observation about the lifeline of Article 370 itself. It opined that the Article could
only be removed only on the recommendation of the Constituent Assembly of the State. Since, the said
Assembly made no such recommendation before it ceased to exist post 1957, it shows that it had no
intention to ask for revocation of the said Article.
Federal Structure in Globalized World
Inter governmental Conflict

Unit II: Parliament for the Union

2.1 Composition of Parliament
What is Parliament?
The parliament of India is called the Indian Parliament. In other countries, the parliament is called the
Standing Council, or house of representatives. In India, it is known as the Lower House of the National
Legislative Assembly or National Parliament. The members of this house are referred to as Members of
Parliament or Members of State Legislative Assemblies (MLAs).legislative organ of union govt. the highest
forum of discussion and debate.

The three components of Parliament as envisaged in the Indian Constitution are as follows:

1. President
2. The Council of States (Rajya Sabha)
3. The House of the People (Lok Sabha)
What are the Two houses in Parliament?
The two houses of Parliament are called Rajya Sabha or Council of States and Lok Sabha or House of
People. The Rajya Sabha is the upper house and the Lok Sabha is the lower house.
1) Rajya Sabha: It is the upper house or Council of States. The Rajya Sabha consists of not more than 250
members.
2)Lok Sabha: This is the lower house or House of People. The Lok Sabha consists of not more than 552
members.

The President of India

President is one of the organs of the parliament. Article 52 of the Indian Constitution, clearly states that
there should be a president of India. He is the commander of the defence force in India. All executive
actions of the state will be taken in his name. The constitution of India bestows him with many powers such
as executive power, Legislative power, Judicial power, Emergency power, ordinance-making power and so
on. Though he is not a member of either house of parliament, he is a constituent part and an integral part of
the parliament. If he is elected to any house of parliament, his seat in such house will be vacant. Elected by
an electoral college by elected members of both the houses. Does not sit or participate in discussions in
either chamber or house. His approval is essential for a bill to be pass ed by both houses. When parliament
not is session an there is need for law he cam promulgate ordinances.

The Composition of Lok Sabha

The maximum number of people that can be elected in Lok Sabha is 552. Out of these 552 people, 530 are
elected to be members of the states. While 20 are the members represented in the union territories. The
remaining 2 people are from the Anglo-Indian community that is elected by the president of India. Lok Sabha
does not follow continuous members. The normal term in Lok Sabha is of 5 years from the date of its first
meeting to the general elections. The committee dissolves thereafter. 25 is the qualifying age
The current structure of Lok Sabha consists of 530 members. Also, the state representatives are directly elected
by the people from their respective constituencies. Furthermore, under the constitutional amendment act of
1988, the voting age was reduced to 18 years from 21 years.

The Composition of Rajya Sabha

The permanent house always stays never completely dissolves. The maximum people that can be elected in
Rajya Sabha is 250. Out of this, 238 are elected as the state representatives. While the remaining 12 are
nominated by the president. The 238 people also consist of representatives from union territories.
Currently, there are 245 members of Rajya members. Also, 229 of them are the state representatives. While 12
are nominated by the president and 4 are elected from union territories. For the allocation of seats in Rajya
Sabha to states and union territories, the 4th schedule of the constitution is used. 30 is the qualifying age and the
individual must have special knowledge and practical experience in art, literature, science and social science.
RS reviews and amends laws made by LS. Bill must pass RS to become a law. Representation to state in any
matter with respect to state

Thus, it is not subjected to dissolution. Also, 1/3rd members of the Rajya Sabha retire every 2nd year. These
retiring members can stand for re-election as well as for re-nomination any number of times they want.

2.2 Role of Rajya Sabha

 Rajya Sabha has played a constructive role in deliberations in the parliament, apart from hosting
various important personalities including the Prime Minister and the finance minister several times.
It has played an impressive role in holding the government accountable for its promises.
 The rights of the Indian citizens need to be actively protected. Hence, the relevance of the bicameral
parliament structure becomes even bigger.
 The ‘Rajya Sabha’, the bureaucracy, and the judiciary act as the 3-layered wall that sees to the
upkeep of the principles of a democratic republic like India.
Role of Rajya Sabha
1. Safety of India’s Federal Polity
Bicameralism is necessary for a federal constitution to give representation to the units of the federation.
While checks and balances usually operate between the executive, legislature and judiciary, the Council of
States acts as a safety valve within the legislature itself, easing federal tensions. Rajya Sabha thus
represents a crucial component of the constitutional checks and balances scheme, in addition to the
commonly identified examples of responsible government and judicial review.

2. Review and Revaluation Role

Indian constitution framers wanted to create a house that would act as a revisionary house to keep a check
on the hasty legislation that could be passed by the lower house under populist pressures.Also, when the
ruling dispensation has a brute majority in the Lok Sabha, Rajya sabha can prevent the government of the
day exercising authoritarianism.

3. A Deliberative Body
Parliament is not only a legislative body but also a deliberative one which enables the members to debate
major issues of public importance.Thus, the role of the Upper House is to be a deliberative body besides
balancing the “fickleness and passion” of the Lok Sabha.
4. Representing the Vulnerable Sections
Women, religious, ethnic and linguistic minority groups are not adequately represented in the Lok Sabha
(due to first past the post-election system).An indirect form of election (through propositional
representation) to the Rajya Sabha, therefore, would give them a chance to get involved in the nation’s
law-making process. Thus, Rajya Sabha can make a place for people who may not be able to win a popular
mandate.

5. Special Powers of Rajya Sabha

The Upper House also has some special powers, such as:
 Power to transfer a subject from the State List to Union List for a specified period (Article 249).
 To create additional All-India Services (Article 312).
 To endorse Emergency under Article 352 for a limited period when the Lok Sabha remains
dissolved.

2.3 Qualifications and Disqualifications for Membership

Member of Parliament:
A Member of Parliament holds a very crucial position in a multitiered parliamentary democracy like India.
They are the ones who are the representatives of a legislative constituency in Lok Sabha (the Lower House
of the Parliament of India).

Members of Parliament in India have some wider personal liberty and freedom of speech. They also have
parliamentary privileges. The privileges also restrain them from doing something that may amount to an
abuse of their position.

Qualifications to Become an MP
As per article 84 of the constitution, a person is qualified to be a member of parliament provided he:
 is a citizen of India
 has completed 30 years of age in case of Rajya Sabha and 25 years in case of Lok Sabha.
 possesses such other qualifications as may be prescribed in that behalf by or under any law made by
Parliament.
The third condition above led the parliament to include other qualifications for MPs in the Representation of
People Act (1951). These qualifications are as follows:
 Only an elector can be elected. Thus, the candidate must be registered as a voter in a parliamentary
constituency and must be eligible to vote. If due to any reason the person loses eligibility to vote, he
would lose eligibility to contest also. For example, if a person is jailed or in lawful detention at the
time of elections, he shall not be eligible for voting. However, if a person is in preventive custody, he
can vote. These define if a person is able to contest for election of MP or not.
 It is not necessary that a person should be registered as a voter in the same constituency. This is
applicable for both Lok Sabha and Rajya Sabha.
 A person from reserved category only can contest election if the Lok Sabha seat is reserved for these
categories. However, an SC/ST person can contest election on an unreserved seat also.

Disqualification grounds
The constitution of India has provided (in article 102) that a member of parliament will be disqualified for
membership if:
1. He holds any office of profit under the Union or state government (except that of a minister or any other
office exempted by Parliament)
2. He is of unsound mind and stands so declared by a court.
3. He is an undischarged insolvent.
4. He is an alien enemy.
5. He has ceased to be a citizen of India.
6. He is disqualified under any other law by parliament
7. He must not have been found guilty of certain election offences and corrupt practices
8. He must not have been convicted for any offence that results in imprisonment for two or more years.
However, detention under preventive detention law is not disqualification.
9. He must not have failed to lodge an account of election expenses within stipulated time.
10. He must not have any interest in government contracts, works and services.
11. He must not be a director or managing personnel in a company / organization in which government has at
least 25% share.
12. He must not have been dismissed from government service due to corruption or disloyalty to state.
13. He must not have been convicted for promoting enmity between groups.
14. He must not have been punished for supporting social crimes such as untouchability, sati, dowry etc.

Article 84- Qualification for membership of Parliament.

A person shall not be qualified to be chosen to fill a seat in Parliament unless he—
a) is a citizen of India, and makes and subscribes an oath or affirmation before some person authorised in
that behalf by the Election Commission according to the form set out for the purpose in the Third Schedule;
b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat
in the House of the People, not less than twenty-five years of age; and
c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by
Parliament.

Article 102- Disqualifications for membership

A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—
a) if he holds any office of profit under the Government of India or the Government of any State, other than
an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any
allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.

A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under
the Tenth Schedule

Office of profit
The term “office” has nowhere been expressly defined. However, from many judicial verdicts, an “office”
refers to an employment which is permanent in nature and exists independent of the holder.
“Profit” normally connotes any advantage, benefit or useful consequences. Generally, it is interpreted to mean
monetary gain, but in some cases benefits other than monetary gain may also come within its meaning.
 MPs and MLAs, as members of the legislature, hold the government accountable for its work.
 The essence of disqualification under the office of profit law is if legislators holds an ‘office of profit’
under the government, they might be susceptible to government influence, and may not discharge their
constitutional mandate fairly.
 The intent is that there should be no conflict between the duties and interests of an elected member.
 Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution.The principle
of separation of power between the legislature and the executive.
What Constitutes an ‘Office of Profit’?
 The law does not clearly define what constitutes an office of profit but the definition has evolved
over the years with interpretations made in various court judgments.
 An office of profit has been interpreted to be a position that brings to the office-holder some
financial gain, or advantage, or benefit.The amount of such profit is immaterial.

Jaya Bacchan v. UOI

She was elected as a member of rajya sabha. Also the government of Uttar Pradesh on her as the chairperson
of the Uttar Pradesh Film Development Council and sanctioned the rank of a Cabinet Minister to her. The
benefits to which she is entitled are:
Honorarium of rupees 5000 per month. Rupees 10000 per month towards entertainment expenditure. Staff
Car with driver, telephones at office and residence, one P.S. one P.A., and two class IV employees.
Bodyguard and Night escort. Free Accommodation and medical treatment facilities for her and her family
members. free accommodation in a government guest house and hospitality while on tour.
Petitioner became disqualified under Article 102(1)(a) of the Constitution for being a member of the Rajya
Sabha and being the chairperson of the U.P. Film Development Council. Jaya Bachchan filed a writ petition
under Article 32 of the Indian Constitution. Jaya Bachchan contented that she never used any of the facilities
provided by the state government and she accepted the chairpersonship of the council honorarily and did not
use any of the facilities mentioned. The fact that the petitioner is affluent or was not interested in the benefits
of the state govt is not relevant to the issue and her contention that she never used any of the facilities
provided by the state government is not valid as getting any profit or using them is another thing but when
the office is capable of yielding profits then that will amount to the office of profit.

Ramakrishna Hegde v. State of Karnataka

In this case, the petitioner, Mr Hegde, was appointed as the Deputy Chairman of the Planning Commission.
According to the respondents, there was ‘profit’ attached to the office as he enjoyed a Cabinet rank and got
various allowances including well-furnished free accommodation, chauffeur-driven car and could travel
anywhere in India having the facility of the State Guest. However, the court held to the contrary as the
allowances given to Hegde were included within the meaning of “compensatory allowance” given in Section
2a of the Parliament (Prevention of Disqualification) Act. The respondents could not prove that the petitioner
had profited by gaining more than the actual expenditure by way of allowances. Also, the court opined that
“Merely because the petitioner had some privileges as a State Guest or rank of a Cabinet Minister, it cannot
be said that he had pecuniary gain”.

Ashok Kumar Bhattacharya v. Ajoy Biswas

while referring to Articles 102 and 191, has held that, “The true principle behind this provision…is that there
should not be any conflict between the duties and the interest of an elected member”. The elected legislator
should feel free to fearlessly fulfil his duties without coming under any governmental pressure. “If such a
person is holding an office which brings him remuneration and the Government has a voice in his continuance
in that office, there is every likelihood of such person succumbing to the wishes of Government”

2.4 Anti-defection Law

Defection is "desertion by one member of the party of his loyalty towards his political party", or basically, it
means "When an elected representative joins another party without resigning his present party for benefits".
Anti-defection law prevents elected members from hopping from one party to another and provides a
penalty for the same. Anti-defection law, the object of this law was to curb the evil of political defections
motivated by the lure of office or other similar considerations that endanger the foundations of our
democracy.
The tenth Schedule of the Constitution has laid down the provisions which deal with situations of defection
in Parliament or state legislatures by:
 members of a political party,
 independent members, and
 nominated members.
Who can be disqualified?
Paragraph 2(1) of the Tenth Schedule provides that
1. A member of Parliament or State Legislature belonging to any political party shall be disqualified for
continuing as such member if he:
 Voluntarily gives up membership of his political party, or
 He votes contrary to a direction issued by his political party or does not vote in the House when such
a direction is issued. However, a member shall not be. disqualified if he has taken prior permission of
his party or is condoned by the party within 15 days from such voting or abstention.
2. If an independent candidate joins a party after the election.
3. If a nominated member joins a party six months after he becomes a member of the legislature.
Exception
Paragraph 4 and 5 of Schedule 10 provides that rule of disqualification would not be applied to
 1. Merger - A person shall not be disqualified if his original political party merges with another
(applicable only if more than two-thirds of the members of the party have agreed to the merger),
and:
2. He and other members of the old political party become members of the new political party, or
3. He and the other members do not accept the merger and opt to function as a separate group.
4. Any person elected as chairman or speaker can resign from his party, and rejoin the party if he
demits that post.
Deciding Authority

 Any question regarding disqualification arising out of defection is to be decided by the presiding
officer of the House.
 The decision to disqualify a member from the House rests with the Chairman/Speaker of the House.

Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP (2008),

the court held that if the party member publicly opposes his original party and supports the other party, then
this act deems to be a resignation from the party.

Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors.:

the question of whether the Speaker, while exercising jurisdiction, can decide whether or not a Legislator
belongs to a particular Legislature party. Holding that a Speaker could indeed decide thus, the Court said
that if, in deciding the question of a member’s disqualification depended upon an answer to which political
party had set such member up and whether or not he belonged to such party, he should be allowed to decide
such question. In the words of the Court, “there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule
which fetters exercise of jurisdiction by the Speaker to decide this question.”

Kihoto Hollohon Case (“Kihoto Hollohon”) case of 1992.

The Supreme Court held that Para 7th of the Tenth schedule made a total exclusion of remedies available
under Articles 136, 226, and 227 of the Constitution. But this was rectified by attracting Article 368(2). It
was held that the decision of the Chairman and the Speaker regarding the disqualification of the members
was to be considered valid but subject to judicial reviews of the court. Thus, this case implicitly provided
that the decisions of the Speaker of the house were legal and binding but were questionable before the
courts.

Ravi S. Naik v. UOI (1994):

The Supreme Court widely explained: “resignation by voluntarily giving the membership.” The court
observed that a person might voluntarily give up his membership of a political party even if he has not
tendered resignation from the membership of that party. Even in the absence of a formal resignation from
membership, inference can be drawn from the conduct of a member that he has voluntarily given up his
membership of the political party to which he belongs”.

Unit III: Union Executive

ARTICLE 52- 78
There is a fundamental link between the Union Executive and the State Executive. The Union executive
duty to implement legislation passed by the Legislature and it coordinates with the governing party
Ministers who make policy judgements. In comparison, the State Executive is the portion of the state
administration which implements laws and is answerable to the government of the state.
The union executive of Indian polity is a part of the political executive, that comprises three important posts:

1. President (Article 52-62)

2. Prime Minister & Council of Ministers (Article 74-75 & Article 78)
3. Attorney-General of India (Article 76)
The president is the nominal executive whereas the Prime Minister is the real executive.
President
Article 52- The President of India.
Executive power of the union
Article 53 states, shall be vested in the President and it shall be exercised by him either directly or through
officer’s subordinate to him, but always in accordance with the Constitution. The expression executive
power is nowhere defined in the constitution. Ordinarily, it connotes the procedure of the Governmental
function that remains after legislative and judicial functions are taken away. Broadly speaking “executive
function” comprises both determinations of policy as well as carrying it into execution. The President is the
head of the State and the Formal Executive. All Executive action at the Centre is expressed to be taken in his
name.
The executive power may, therefore, be shortly defined as the power of carrying on the administration of the
affairs to the State, expecting functions which are vested by the Constitution in the legislature and judiciary.
The Constitution formally vests many functions in the President but he has no function to dis. charge in his
discretion, or in his individual judgment. He acts on ministerial advice and, therefore, the Prime Minister
and the Council of Ministers constitute the real and effective executive.

Article 54- Election of President.

The President shall be elected by the members of an electoral college consisting of—
(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States.
He is elected in accordance with the system of proportional representation by means of single transferable
vote by secret ballot
The constitution-makers were faced with the question whether the President should be elected directly by
the people or not. Ultimately, they chose the indirect elective procedure so as to emphasize the ministerial
character of the executive that the effective power resides in the Ministry and not in the President as such.
Also the method of direct election would have been very costly and energy consuming. There was also the
fear that a directly elected President may emerge, in course of time, as a centre of power in his own right.
Therefore, the framers of the Constitution thought that it would be adequate to have the President elected
indirectly.

Article 56- Term of office of President.

The President shall hold office for a term of five years from the date on which he enters upon his office:
Provided that—
(a) the President may, resign his office by writing under his hand addressed to the Vice-President;
(b) the President may, be removed from office by impeachment in the manner provided in article 61 for
violation of the Constitution;
(c) the President shall, continue to hold office until his successor enters upon his office notwithstanding the
expiration of his term.
Any resignation addressed to the Vice-President under clause (a) of the proviso to clause (1) shall forthwith
be communicated by him to the Speaker of the House of the People

Article 57- Eligibility for re-election.

A person who holds, or who has held, office as President shall, be eligible for re-election to that office
subject to the other provisions of this Constitution.

Article 58- Qualifications for election as President.

(1) No person shall be eligible for election as President unless he—
(a) is a citizen of India,
(b) has completed the age of thirty-five years, and
(c) is qualified for election as a member of the Lok Sabha.
(2) A person shall not be eligible for election as President if he holds any office of profit under the
Government of India or the Government of any State or under any local or other authority subject to the
control of any of the said Governments.

Article 59- Conditions of President's office

There are a few conditions for the candidate running for the President’s elections:

1. He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of either of the
house, he should vacate the seat on his first day as President in the office
2. He should not hold any office of profit
3. For his residence, Rashtrapati Bhavan is provided to him without the payment of rent
4. Parliament decides his emoluments, allowances and privileges
5. Parliament cannot diminish his emoluments and allowances during his term of office
6. He is given immunity from any criminal proceedings, even in respect of his personal acts
7. Arrest or imprisonment of the President cannot take place. Only civil proceedings can be initiated for
his personal acts that too after giving two months’ of prior notice.

Article 61- Impeachment of President

 Either House of the Parliament of India can initiate the charges of impeachment against the
President.
 One-fourth of the members of the House that has framed the charges of impeachment should sign the
charges and the President should be handed over a notice of 14 days.
 The impeachment resolution is sent to the other House to investigate the allegations once it is passed
by the two-thirds majority of the House which initiated the charges of impeachment.
 House shall investigate the charge or cause the charge to be investigated and the President shall have
the right to appear and to be represented at such investigation.
 However, if the motion is passed in the other House too by a two-thirds majority, the President is
deemed to have been removed from his office from that day.

Article 62- Time of holding election to fill vacancy in the office of President and the term of office of
person elected to fill casual vacancy
(1) An election to fill a vacancy caused by the expiration of the term of office of President shall be
completed before the expiration of the term.
(2) An election to fill a vacancy in the office of President occurring by reason of his death, resignation or
removal, or otherwise shall be held as soon as possible after, and in no case later than six months from,
the date of occurrence of the vacancy; and the person elected to fill the vacancy shall, subject to the
provisions of article 56, be entitled to hold office for the full term of five years from the date on which
he enters upon his office.

Judicial Functions
 According to Article 143, the President may consult the Supreme Court for advice on some crucial
constitutional, legal, and diplomatic issues.
 According to Article 72, he/she also has the authority to commute a court-ordered sentence or to grant a
pardon, reprieve, respite, or suspension of the term.
 According to Articles 124 and 217, the Supreme Court and High Court judges, including the Chief
Justice of India and the Chief Justice of High Courts, are appointed by the President.

Re The Delhi Laws Act, 1912 v. The Part C States (Laws) Act, (1950),
The first reference under Article 143 was made. Around twelve consultations were made by the President
for the Supreme Court’s opinion in accordance with Article 143 of the Constitution.

Pardoning Powers of the President Article 72

Article 72 empowers the President to grant pardon, reprieve, respite or remission of punishment, or to
suspend, remit or commute the sentence of any person convicted of any offence in all cases

1. Punishment or sentence is for an offense against a Union Law or the offense made under Concurrent
Lists (A regards laws made under Concurrent Lists, the jurisdiction of the President shall be concurrent
with that of Governor)
2. Punishment or sentence is by a court martial (military court); and
3. The sentence is a sentence of death
 The process starts with filing a mercy petition with the President under Article 72.
 Such a petition is required to send to the Ministry of Home Affairs for consideration.
 The abovementioned petition was then discussed by the Home Ministry in consultation with the
concerned State Government.
 After the consultation, recommendations are made by the Home Minister and then the petition is sent
back to the President.
Pardon When the President pardons, both the sentence and the conviction of the convict completely
absolve the sentences, punishments and disqualifications

Respite When the President uses the pardoning power of ‘Respite’, he chooses to award a lesser sentence
in place of one originally awarded to the convict. For example, due to some special fact, such as
the physical disability of a convict or the pregnancy of a woman offender, the President can use
this power
Reprieve When the President chooses the pardoning power of ‘Reprieve’; he stays the execution of a
sentence (especially that of death) for a temporary period. By doing this, he enables the convict to
have time to seek pardon or commutation from him
Remit When the President chooses the pardoning power of Remit, he acts to reduce the period of the
sentence but the character of the sentence remains the same. For example, a sentence of rigorous
imprisonment for two years may be remitted to rigorous imprisonment for one year but the
imprisonment remains rigorous
Commute When the President chooses to use this pardoning power of ‘Commute; he substitutes one form of
punishment for a lighter form. For example, a death sentence may be commuted to rigorous
imprisonment, which in turn may be commuted to simple imprisonment.

Shatrughan Chauhan & Anr vs Union Of India & Ors. (2014),

The Supreme Court held that if the mercy petition is pending for an indefinite period without any valid
reasons, then the court would intervene and decide on the petition or fix a time limit to pass the petition by
the President and Governors. In addition to this, recently in September 2020, the Supreme Court bench led
by then Chief Justice of India U.U. Lalit criticised the delay caused in the case of the mercy petition which
was filed by Balwant Singh in 2012. It’s been 10 years waiting for the response of the President.

Maru Ram V. UOI

the constitutional bench of the Supreme Court of India held that the power under Article 72 is to
be exercised on the advice of the Central Government and not by the President on his own at his
discretion. And that the advice of the Government is binding on him.

Legislative Functions Of The President

 The President summons the House of Parliament at least twice a year or prorogues either House of
Parliament and dissolves the Lok Sabha. He may summon both the Houses to meet in a joint sitting for
debating or voting on a bill in case of deadlock.
 He may address either house separately or both Houses jointly. At the commencement of the first session
after every general election, the President delivers an address.
 He appoints speaker, deputy speaker of Lok Sabha, and chairman/deputy chairman of Rajya Sabha when
the seats fall vacant.
 He nominated 12 members of the Rajya Sabha and two members to the Lok Sabha from the Anglo-
Indian Community.
 Every Bill passed by the Parliament must receive the President’s assent before it can become an Act. The
President may give his assent or withhold his assent or return it for reconsideration by Parliament with
his own suggestion, a Bill other than a Money or Constitutional Amendment Bill. Parliament may accept
his suggestion or reject it but if it is again sent for the President's assent now the President has to give his
assent.
 President can issue ordinances as the circumstances appear to him to require when- both Houses of
Parliament are not in session; and he is satisfied that circumstances exist which render it necessary for
him to take immediate action. Article 123

Ordinance making power of the President

Article 123 of the Indian Constitution grants the President of India certain Law-making powers i.e., to
Promulgate Ordinances when either of the two Houses of the Parliament is not in session which makes it
impossible for a single House to pass and enact a law. Ordinances may relate to any subject that the parliament
has the power to make law, and would be having same limitations. Thus, the following limitations exist: -

 When legislature is not in session: He can promulgate ordinance when either Lok Sabha or Rajya Sabha
is not in session or if both are not in session
 Immediate action is needed: the President though has the power of promulgating the ordinances but same
cannot be done unless he is satisfied that there are circumstances that require him to take immediate action.
 Parliament should approve: after the ordinance has been passed it is required to be approved by the
parliament within six weeks of reassembling. The same will cease to operate if disapproved by either
House.
 One of the essentials to be kept in mind while passing an ordinance is that the President should be satisfied;
that circumstances exist that requires immediate actions on part of the President. The apex court has not
yet defined ‘satisfaction of the President’ and even whether the subjective satisfaction of the President can
be questioned in the Court of Law.
He can roll-out an ordinance for only those matters on which Parliament (Lok Sabha & Rajya Sabha) can
make laws. His ordinances have the same effect on policies as parliament’s acts will have.The President may
withdraw an ordinance at any time. However he exercises his power with the consent of the Council of
Ministers headed by the PM.

A.K. Roy v. Union of India (1982), the Supreme Court held that the subjective satisfaction of the President
is not completely non-justiciable. Supreme Court while examining the constitutionality of the National
Security Ordinance, 1980 which was issued to provide for preventive detention in certain cases, the Supreme
Court argued that the President’s power of making Ordinances is not beyond the Judicial Review of the
court. However, the Court was unable to explore the issues of the case further as the ordinance of the
President was replaced by an Act. The court also pointed out the need to exercise judicial review over the
President’s decision only at substantial grounds and not otherwise at every ‘casual challenge’. Later in case
of
Venkata Reddy v State of Andhra Pradesh
The Supreme Court has ruled that since the power to make an ordinance is legislative and not executive
power, its exercise cannot be questioned on such grounds as improper motives, or non-application of mind
or on grounds of its propriety, expediency and necessity. An ordinance stands on the same footing as an Act.
Therefore, an ordinance should be clothed with all the attributes of an Act of legislature carrying with it its
incidents, immunities and limitations under the Constitution. It cannot be treated as an executive action or an
administrative decision.

Maitreyee Mahanta v State of Assam

An ordinance was promulgated by the President in 1996 declaring a section of the population of Assam as
Scheduled Tribes. The same ordinance was repeated several times and ultimately it lapsed without
Parliament passing an analogous Act. The High Court of Gauhati that as Parliament did not pass the
necessary law, the ordinance would lapse and, accordingly, the rights vested in the communities by the
ordinance would also lapse.

Bank Nationalisation case,

The constitutional validity of the Banking Companies(Acquisition and Transfer of Undertakings) Ordinance,
1969, was challenged. By this ordinance, the Central Government nationalized a number of private banks. It
was argued that the Ordinance was made invalid because the condition precedent to the exercise of the
power under Article 123 did not exist. It was argued that Article 123 does not make the President as the final
arbiter of the exercise the conditions on which the power to promulgate an ordinance may be exercised. On
the other and, the Government's argument was that "the condition of satisfaction of the President' "is purely
subjective" and the Government was "under no obligation to disclose the existence of, or to justify the
circumstances of the necessity to take immediate action".
the 38th Amendment of the Constitution had added Article 123(4) making satisfaction of the
President to issue an ordinance non-justiciable. In spite of Article 123(4), the Supreme Court suggested
that presidential satisfaction under Article 123(1) could still be questioned on the grounds of mala fides.
However, in 1978, the 44th Amendment deleted this provision and restored the status quo ante.rama

Certain Bills need a prior permission of the President before introduction in the Parliament.
 Bill that seeks to alter the boundaries of the states and names of the states.
 Money Bill.
 Finance Bill- Any financial bill has to go through the President before being presented in the Parliament.
 A Bill involving taxation or distribution of financial resources to the States.
 A Bill that seeks to restrict freedom of trade.

Executive Functions Of The President

 All the administrative work is carried out in the name of the President
 Appointment of Prime Minister and the Council of Members
 Approval of members of Union Public Service Commission and National Commission for Women
 The President shall also have the power to remove:
o His Ministers, individually.
o Attorney-General of India.
o The Governors of the States.
o The Chairman or a Member of the Public Service Commission of the Union or of a State, on the
report of the Supreme Court.
o A judge of the Supreme Court or of the High Court or the Chief Election Commissioner or the
Comptroller-General of India on an address of Parliament.

Prime Minister
Article 75 of the Indian Constitution mentions that a Prime Minister is one who is appointed by the
President. There is no specific procedure for his election or appointment. Article 74(1) states that there shall
be a Council of Ministers with a Prime Minister at the head to aid and advise the President. Thus, the Indian
Constitution itself recognizes a Council of Ministers.

Who is eligible to be a Prime Minister?

To become an Indian prime minister one has to be

 A citizen of India.
 A member of either Rajya Sabha or Lok Sabha
 He should have completed his 30 years if he is a member of the Rajya Sabha or can be 25 years of
age if he is a member of the Lok Sabha

Appointment

 The prime minister of India is appointed by the President of India. Article 75 says that the Prime
Minister shall be appointed by the President and the other Ministers shall be appointed by the
President on the advice of the Prime Minister.
 A member of either the Lok Sabha or the Rajya Sabha can be appointed as the Prime Minister. If he
is not a member of either House of the Parliament then he has to be elected to either House within six
months of his appointment.
  Following the conventions of the parliamentary system of government, the President has to appoint
the leader of the majority party in the Lok Sabha as the Prime Minister.
 But, when no party has a clear majority in the Lok Sabha, then the President may exercise his
discretion in the selection and appointment of the Prime Minister.
 In such a situation, the President usually appoints the leader of the largest party or coalition in the
Lok Sabha as the Prime Minister and asks him to seek a vote of confidence in the House within a
month.

Powers And Functions Of The Prime Minister

 As the head of the Union council of ministers, the Prime Minister has the following powers:
 He makes recommendations to the president for ministerial appointments. Only those ministers who are
recommended by the Prime Minister can be appointed by the President.
 He reassigns and reshuffles various ministerial portfolios.
 In the event of a disagreement, he can ask a minister to resign or advise the President to dismiss him.
 He directs, controls, and coordinates all of the ministers' activities.
 By resigning from office, he can bring the council of ministers to its knees.
The other ministers cannot function if the Prime Minister resigns or dies because he or she is the head of
the council of ministers. The Prime Minister dissolves the council of ministers automatically, creating a
void. Any other minister's resignation or death, on the other hand, simply creates a vacancy that the Prime
Minister may or may not wish to fill.

Article 78- Duties of Prime Minister as respects the furnishing of information to the President, etc
It shall be the duty of the Prime Minister—
(a) to communicate to the President all decisions of the Council of Ministers relating to the administration of
the affairs of the Union and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the Union and proposals for
legislation as the President may call for; and

Council of Ministers: Organization and Working

Article 74 of the Constitution of India provides for the real executive i.e. the Union Council of Ministers
with the Prime Minister as its head. Theoretically the Council of Ministers and Prime Minister are to aid and
advise the President in the exercise of his powers. However, in actual practice, in reality all powers of the
President are used by the PM and his ministry
Article 75 of the Constitution lays down following basic rules regarding the organisation of the Union
Council of Ministers:
(a) The Prime Minister is appointed by the President. All other ministers are appointed by the President upon
the advice of the Prime Minister.
(b) The ministers hold office during the pleasure of the President.
(c) The Council of Ministers is collectively responsible to the House of the People (Lok Sabha).
(d) Before a minister takes over his office, the President administers to him the oath of office and secrecy.
(e) The salaries and allowances of ministers are such as the Parliament determines by law.

Eligibility

To be eligible for an appointment as a minister, a person must be a member of either the Lok Sabha or the
Rajya Sabha. A person who is not a member can be appointed for six months. But then he or she has to
obtain membership of any House of the Parliament during this time. Usually, the Prime Minister and most of
the other ministers are members of the Lok Sabha.

Process of Formation of the Union Council of Ministers:

The process of formation of the Council of Ministers begins with the appointment of the Prime Minister by
the President. After the election of each new Lok Sabha, the President appoints the leader of the majority in
Lok Sabha, as the Prime Minister.
After his appointment, the Prime Minister prepares the list of the persons whom he recommends for
appointment as ministers. The President appoints all other ministers upon his recommendation. The
President always accepts the advice of the Prime Minister.
Further, acting upon the advice of the Prime Minister, the President distributes portfolios among the
ministers.
The Constitution gives a free hand to the Prime Minister to constitute the Council Ministers. Normally only
a member of either House of the Parliament is appointed as a minister. However, the Prime Minister can also
appoint a non-member as a minister, but such a minister has to get the membership of either house, (through
an election or a nomination) within six months of his appointment. In case of failure to do so within 6
months, the concerned minister has to quit his minister-ship after the expiry of six months.

Categories of Ministers:

(a) Cabinet Ministers:

Their number is between 15- 20. They are important ministers hold key portfolios. They constitute the
Cabinet i.e. the powerful policymaking and decision-making part of the Council of Ministers.
(b) Ministers of State:
They constitute the second category of ministers. They are not the members of the Cabinet. A minister of
state either holds an independent charge of a small department or is attached to a cabinet minister. While
some departments like Home, External Affairs, Defence, Finance, Agriculture have 2 or 3 Ministers of State,
the departments like Civil Aviation, Information and Broadcasting, Labour Welfare, Surface Transport and
Textiles; each is headed by a Minister of State.
(c) Deputy Ministers:
They are helping ministers attached to the Cabinet Ministers or the Ministers of State. No Deputy Minister
holds an independent charge of any department. The present Union Council of Ministers has no Deputy
Minister as its member.

Working of Council of ministers

The Prime Minister is head of the Council of Ministers. The whole body works together under this person as
a team. They hold Collective Responsibility. The responsibility for anything going wrong under one Ministry
has to be shared by everyone. If it loses the confidence of the Lok Sabha, the entire Council has to resign. It
may alternatively recommend to the President to dissolve the House. This means that all of them together are
answerable to the Parliament for any decision taken by the Prime Minister. If a vote of no-confidence is passed
against the Prime Minister, they all have to resign. Cabinet Ministers hold charge of different portfolios or
departments of the Central Governments like finance, defense, etc. a Minister of State can also hold
independent charge of a department.

Unit IV: Supreme Court

The Supreme Court of India is the country’s highest judicial court. It is the final court of appeal in the
country. Including the CJI, there are 34 judges in the Supreme Court. The judges sit in benches of 2 or 3
(called a Division Bench) or in benches of 5 or more (called a Constitutional Bench) when there are matters
of fundamental questions of the law is to be decided.

Independence of the Judiciary

Fair and neutral judicial system which can take its decision without any interference of the executive or
legislative branch of government.
Mentioned in Basic Structure of Constitution judicial Independence is guaranteed in the constitution and
reaffirmed by the Kesavananda Bharati (1973) Judgement.
Principle of separation of powers the Judiciary keeps in check the executive and Legislature in accordance
with the derived from Article 13.

Need for Independent judiciary

a) Welfare State: To function with absolute independence and necessary boldness in the face of adversity
defines the character of the Indian judiciary.
b) Live up to people’s aspirations: Judiciary’s ability to uphold the Constitution sustains its impeccable
character. The immense trust reposed by the public at large upon the judiciary, as a last resort of hope.
c) Checks and balances in a political democracy: A robust justice delivery system at the grassroots level
ensures better functioning of the state.
d) Accountability to the people: To uphold the democratic principle of accountability. It helps to keep the
executive and legislature accountable to the people through judicial review and judicial activism.
e) Protection of individual rights: The stark divide between the haves and have nots is still a reality only an
impartial and independent judiciary protects the rights of the individual without fear and favour.
f) Prevent autocracy: Without an independent judiciary, we will have a dictatorship, as the executive will
be able to do whatever it likes.

Appointment and Removal of Judges

Article 124- Establishment and constitution of Supreme Court.

(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law
prescribes a larger number, of not more than seven other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal
after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the
President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India
shall always be consulted when:

(a) a Judge may, resign his office by writing under his hand addressed to the President;

(b) a Judge may be removed from his office in the manner provided in clause (4).

3) Qualifications-A person shall not be qualified for appointment as a Judge of the Supreme Court unless he
is a citizen of India and— (a) has been for at least five years a Judge of a High Court or of two or more such
Courts in succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President
passed after an address by each House of Parliament supported by a majority of the total membership of that
House and by a majority of not less than two-thirds of the members of that House present and voting has been
presented to the President in the same session for such removal on the ground of proved misbehaviour or
incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation
and proof of the misbehaviour or incapacity of a Judge under clause (4).
(6) Every person appointed to be a Judge of the Supreme Court shall, make and subscribe an oath or
affirmation before the President, or some person appointed in that behalf by him, before he enters upon his
office, according to the form set out for the purpose in the Third Schedule.

Retirement- Judges of the Supreme Court must retire at age 65, whereas judges of the High Court must
retire at age 62. The judges' extensive experience enables them to work impartially and independently.

‘Three judges Cases’ now referred to as the ‘Four Judges case’ after 2015, which played an important
role in introducing a collegium system for the appointment of judges in the Supreme Court and High Courts.
The Court, with the help of these cases, set a precedent for the principle of independent jurisdiction, which
means that no other organ of the government except the judiciary itself will interfere in the election of
judges.
The first judge case – S.P. Gupta v. Union of India
Petitions were filed challenging about the practice of the appointing Additional Judges and for not filling the
permanent vacancies. Their main observation was that transfer has to be done seeing the interest of the
public, this should not be like a punishment but rather should benefit the person whose transfer is done. But
since there was no satisfied judgment which further led to the Second Judges case.
The second judge case – Supreme Court Advocates-on-record Association v. Union of India
In this case main matter which was being raised was that whether the opinion of the Chief Justice of India in
regard to the appointment of judges in supreme court and high courts as well as in regards to transfer of high
court judges, is entitled to primacy?1 In the petition, it was contented that the executive is not fully able to
achieve the target of filling all the vacant judicial vacancies due to which appoint of qualified judges is not
seeing possible and they also accentuated on the appointment of judges requires a group consultative in
which no constitutional functionary such as executive must be given primacy. In the judgment, it was
concluded that CJI has primacy in the matter of appointment of the High Court and the Supreme Court
Judges and no appointment could take place under these provisions unless the conformity with the opinion
of the CJI is present. Hence this case was an attempt to keep Judiciary and Executive in their own pace and
to what role they belong.
Third judge case- re presidential reference
Through this case, judiciary have increased their powers by prohibiting the intervention of Executive in their
decisions. The question raised in this case was that whether CJI alone is enough for consultation or do CJI
have to consult with other Judges also? It was held that CJI have to consult with other 4 senior-most Judges
and this developed the concept of Supreme Court Collegium.
Fourth Judge's Case:
With a two-thirds majority, the 121st Amendment was passed by both houses of parliament and created the
National Judicial Appointment Commission (NJAC). After being submitted to the states for ratification, the
amendment was ultimately sent to the president for signature after receiving the blessing of 16 states. The
Supreme Court (SC), in the Supreme Advocates on Record Association & and Anr. V Union of India case,
also known as the Fourth Judge's Case, rejected the amendment before it could fully take effect because it
went against the independence of the judiciary

Shivkant Shukla v. ADM Jabalpur

The Supreme Court in this case was essentially forced to rule favourably by the government in power at the
time. When Justice Beg was appointed Chief Justice despite Justice Khanna's seniority, Justice H. R.
Khanna was the one who disagreed with the majority and had to pay the price.
Justice Bhagwati, who dismissed the argument offered, recently acknowledged that it was his largest error in
judgment to dismiss the argument made in the current case.

Sarojini Ramaswami vs. Union Of India & Ors

Justice Ramaswami was found guilty of misappropriation of funds when he was justice in Chandigarh and
Haryana High Court, this case was one of the most politically motivated cases as the ruling party did
everything in their power to prevent the impeachment of Justice Ramaswami, after the Narasimha Rao
government did nothing to constitute the committee that would hold trials for the justice leading to
numerous petition, including the apex court bench, this led to the formation of a committee that found the
judge guilty, The highest court's impeachment order failed miserably due to the lack of a majority vote from
the Houses of Parliament. Justice Ramaswamy was accused of squandering court funds but was not
impeached because one of the parties refused to vote. This case demonstrated the legal system's
shortcomings and the need for stringent judicial accountability to avoid repeating the same issues.

K Veeraswamy v. UOI
SC by majority of 4:1 held that a judge of the SC and HC can be prosecuted and convicted for criminal
misconduct. The expression misbehaviour in 124(4) includes criminal misconduct.

Judicial Accountability
Judges of the Supreme Court of India and the High Courts may be impeached under Articles 124 and 217 of
our Indian Constitution, respectively, for misbehaviour and incompetence. The High Court has "control"
over the lower courts, as stated in Article 235 of the Constitution.
Making the court responsible for their acts is very important as the courts are considered the protectors and
guardians of our constitution, if they breach their duties and work with a made intention, then democracy
would be breached. Judges' accountability and judicial responsibility are not novel concepts.
Judges are required to enforce the law and correct injustices without taking into account their interests or
safety. Independence of judiciary and Legal responsibility, as previously mentioned, both ideas advocate
legal supremacy, one tells us about how the judiciary should be kept away from external influence and the
other one tells us to hold the judiciary is accountable for what they do. Both of these can be seen to
complement each other as both work to make the judicial system effective and remove all the restrictions on
the path that hampers justice.
The word accountability suggests taking responsibility by a person or a body or country for its action for
punishment avoidance or by giving valid reasons. Judicial accountability can be described as the judges’
view where they should be held accountable for their work. This could be in different ways, like being
accountable to the public to get voters’ approval in the election or being accountable to some political body
like the legislature or governor. Several countries have judicial answerability and accountability of the
judges in their constitutions. This is done so there that power is not concentrated on one hand, especially in
countries the activism of the judicial body invades the domain of other organs.

Ethics Code for a Judge

 Ethical decision: The judicial decision has to be honest and fair. This is very important because the
public’s confidence lies in the judges. The opinion of judges has to be according to their proficient facts
and law.
 Administer Justice: The main motto of the judge should be not to fear anything while administering
justice.
 Maintaining distance from relatives: The judge needs to distance himself from the disputing parties and
their lawyers during the trial conduct. It is often seen that a close connection with judges is utilised to
win over a case, which is unethical.
 Equal Opportunity: Both the parties disputing should be equally treated by the principles of law and
equity. The judge should be above any bias on group, caste, section or division. There should be equal
opportunities given to the parties during the trial. The judge should not be affected by anyone’s
personality. The judge cannot disregard the presence of law and equity in terms of fairness while
discharging his duties.
 No man can be judged in his/her cause: This principle of ethics applies to the case where the judge is
convicted as a party and in cases that can have the judges’ interest. The impartiality of the judges is one
prime aspect. The Supreme Court manifests this.
Judicial accountability cases are done if any judiciary member breaks these ethical codes.

Challenges
Accountability can be considered as one of the cornerstones for establishing good governance. Judicial
accountability can be termed as a corollary to judicial independence. Some of the challenges in
implementing judicial accountability are listed below:
1. The most important challenge for the regulation of judicial accountability is that the judiciary is an
independent organ and the independence of the judges cannot be done away with. Article 235 of the
Indian Constitution provides for the authority any High Court has over the Subordinate Courts which
clearly hints on the effective mechanism necessary to enforce accountability.
2. There exists no other way in which a judge can be removed except through impeachment. Impeachment
is a process that involves a lot of hurdles. This is the other challenge faced by the judiciary in bringing in
judicial accountability.
3. The influence of politics in the judicial system is another challenge for the judiciary to perform with
integrity. The judges failed to make decisions with transparency and fairness if they are dominated
largely by the political bodies in the country. This indeed becomes a challenge for the judiciary to
implement accountability alongside securing the independence of the judiciary.

Sarojini Ramaswami vs. Union Of India & Ors

Justice Ramaswami was found guilty of misappropriation of funds when he was justice in Chandigarh and
Haryana High Court, this case was one of the most politically motivated cases as the ruling party did
everything in their power to prevent the impeachment of Justice Ramaswami, after the Narasimha Rao
government did nothing to constitute the committee that would hold trials for the justice leading to
numerous petition, including the apex court bench, this led to the formation of a committee that found the
judge guilty, The highest court's impeachment order failed miserably due to the lack of a majority vote from
the Houses of Parliament. Justice Ramaswamy was accused of squandering court funds but was not
impeached because one of the parties refused to vote. This case demonstrated the legal system's
shortcomings and the need for stringent judicial accountability to avoid repeating the same issues.

K Veeraswamy vs. UOI

As a result of the Supreme Court's decision that the chief justice must submit a written request before the
Supreme Court or the appropriate high court to conduct a civil or criminal inquiry, the issue of judicial
accountability was made more challenging in this case. It is claimed that as a result, judicial accountability
was ultimately eliminated.

Advisory Jurisdiction (Article 143)

Article 143, the President has the power to address questions to the Supreme Court, which he deems
important for public welfare. The Supreme Court “advises” the President by answering the query put before
it. Till date, this mechanism has been put to use only twelve times.

Article 143-
(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise,
which is of such a nature and of such public importance that it is expedient to obtain the opinion of the
Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after
such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, refer a dispute between the Government of India and one or more States; or between
the Government of India and any State or States on one side and one or more other States on the other; or
between two or more States to the Supreme Court for opinion and the Supreme Court shall, after such
hearing as it thinks fit, report to the President its opinion thereon
The opinion is only advisory, which the President is free to follow or not to follow.. However, even if the
opinion given in the exercise of advisory jurisdiction may not be binding, it is entitled to great weight.
Kerala Education Bill
sought the Supreme Court's opinion on the constitutional validity of certain provisions of the Kerala
Education Bill which had been reserved by the Governor for the President's consideration. The public
opinion in Kerala was greatly agitated because of the Bill. Reference of the matter to the Court saved the
Central Government from political embarrassment as well as mollified public opinion and helped in the
removal of the lacunae in the Bill which the Supreme Court pointed out in its opinion.
In its advisory opinion in this case, the Court settled the following two significant points concerning the
scope of Art. 143(1).
(1) The Court rejected the contention that what was referred to the Court for its opinion was not a statute
already put into force, but a Bill which was yet to be enacted. The Court argued that Art. 143(1) does
contemplate the reference of a question of law that is "likely to arise".
(2) It was argued that questions about the validity of some other provisions of the Bill also arose but these
were not referred to the Court. Hence, the reference was an incomplete one and the Court should not
entertain such a reference. The Court rejected the argument saying that "it is for the President to determine
what questions should be referred and if he does not entertain any serious doubt on the other provisions it is
not for any party to say that doubts arise also out of them" and the Court "cannot go beyond the reference
and discuss those problems"

Cauvery Dispute Tribunal (AIR 1992 SC 522),

a tribunal was appointed by the central government to decide the question of waters of river Cauvery which
flows through the states of Karnataka and Tamil Nadu. The Tribunal gave an interim order in June 1991
directing the State of Karnataka to release a particular quantity of water for the state of Tamil Nadu. The
Karnataka government resented the decision of the Tribunal and promulgated an Ordinance empowering the
government not to honour the interim Order of the Tribunal.
The Tamil Nadu government protested against the action of the Karnataka government. Hence the President
made a reference to the Supreme Court under Article 143 of the Constitution. The Court held that the
Karnataka Ordinance was unconstitutional as it nullifies the decision of the Tribunal appointed under the
Central Act (Inter Sate Water Dispute Act, 1956) which has been enacted under Article 262 of the
Constitution. The Ordinance is also against the principles of the rule of law as it has assumed the role of a
Judge in its own cause.
Ismail Faruqui v. Union of India [(1994) 6 SCC 360],
the five judge bench of the Supreme Court held that the Presidential reference seeking the Supreme Court’s
opinion on whether a temple originally existed at the site where the Babari Masjid subsequently stood was
superfluous and unnecessary and opposed to secularism and favoured one religious community and
therefore, does not required to be answered.

Appellate Jurisdiction
Appellate jurisdiction means that the ability of a higher court to hear appeals from a lower court.
Article 136- Special leave to appeal by the Supreme Court
(1) the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any court or tribunal in the
territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by
any court or tribunal constituted by or under any law relating to the Armed Forces.

The Supreme Court is authorised to grant in its discretion special leave to appeal from any judgement in any
matter passed by any court or tribunal in the country (except military tribunal and court martial). This
provision contains the four aspects as under:

 It is a discretionary power and hence, cannot be claimed as a matter of right.

 It can be granted in any judgement whether final or interlocutory.
 It may be related to any matter–constitutional, civil, criminal, income-tax, labour, revenue, advocates,
etc.
 It can be granted against any court or tribunal and not necessarily against a high court (of course,
except a military court).
It has a broad appellate jurisdiction that can be divided into four categories:
 Appeals on constitutional matters S.132
 Appeals in civil matters S.133
 Appeals in criminal matters S.134
 Appeals by special leave S.136
Parliament has the authority to provide the Supreme Court further powers to entertain and hear appeals
against any judgement, final order, or sentence issued by a High Court. The scope of this provision is very
wide and it vests the supreme court with a plenary jurisdiction to hear appeals.

Doctrine of Precedent
Article 141- Law declared by Supreme Court to be binding on all courts.
The doctrine of precedent is a principle of following previous decisions of the Court within its well-defined
limits, it significantly declares that cases must be decided in the same way when the material facts are the
same as it becomes “ratio decidendi”, in contradistinction to a binding precedent, the Court has to be careful
about the “obiter dictum” made by the Court in the judgment as certain obiter dictum have persuasive value
but they do not have any binding force. “Obiter dictum” is a mere saying by the way, a chance remark,
which is not binding on the future courts, though it may be respected according to the reputation of the
Judge, the eminence of the Court and the circumstances in which it came to be pronounced. The reason for
not regarding an “obiter dictum” as binding as it was probably made without a full consideration of all the
consequences that may follow; or the Court might not have expressed a concluded opinion.

Bir Singh v. Union of India, it was held that “the judgment of a decided case is precedent and the same will
operates as a binding precedent to all possible contingencies when a similar issue of law arises. Before
construing the doctrine of precedent, it is a prerequisite to know what exactly in a judgment is binding pursuant
to Article 144 of the constitution.”

Ratio Decidendi – if a case brought before the court has an issue, the judge will discuss the relevant laws
and case facts by ascertaining the material fact by obviating the immaterial facts. The resultant principle
associated with the rationale of the judgment is called Ratio Decidendi. Ratio Decidendi = Rationale of the
Judgment. Ratio Decidendi of a case is binding to all courts.
Jayant Verma v. Union of India, wherein the court has held that a judgment will have no authority, If it
has passed without hearing the other party, or without giving proper reasoning, or devoid of citing any case
laws to substantiate the reason behind such judgment.

Obiter Dicta – it is generally the observations that are made by the court during the decision-making process
but are not principally concerned with reaching a decision. Hence, obiter dictum is the mere judicial opinion
in a particular case and has no general application. Therefore, an obiter dictum doesn’t have the binding
effect, but Ratio Decidendi has.
Krishna Kumar v. Union of India the Hon’ble Supreme Court of India held that the enunciation of reason
and the principle of law upon which the arisen dispute has settled following the question under the
consideration of court has been decided are alone binding as a precedent. Nevertheless, obiter dicta have
significance despite its lack of precedent force.

Unit V: High Courts

Appointment and removal of Judges

Article 217- Appointment and conditions of the office of a Judge of a High Court.

 The judges of the High Courts can be appointed only by the warrant of the President and his seal;
 The appointment can be done only after consulting the Chief Justice of India and the Governor of the
State;
 The appointment of Judges other than the Chief Justice can be done after consulting the Chief Justice of
the High Court;
 The provisions under this article must be followed even while appointing the Additional Judges according
to Article 224.
 The person can hold the office as a judge until he is sixty-two years old;
Provided that—

(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article
124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme
Court or by his being transferred by the President to any other High Court within the territory of India.

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India
and—
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;

(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President
after consultation with the Chief Justice of India and the decision of the President shall be final.

Removal of Judges:
Article 124(4) determine the procedure of removal of the judges:

 A motion of impeachment addressed to the President is to be signed by at least 100 members of

the Lok Sabha or 50 members of the Rajya Sabha and then delivered to the Speaker of Lok
Sabha or the Chairman of Rajya Sabha.
 The motion is to be investigated by a committee of 3 judges of the Supreme Court and a
distinguished jurist.
 If the Committee finds the judge guilty of misbehaviour or that he suffers from incapacity, the
motion along with the report of the committee is taken up for consideration in the House where
motion was moved.
 The judge is then removed by the requisite majority, i.e., majority of total and 2/3 of its
members present and voting.
Key facts:

 A member of the higher judiciary, which means the Judges and Chief Justices of the Supreme
Court of India and the state High Courts, can be removed from service only through the process
of impeachment under Article 124 (4) of the Constitution.
 A judge is removable from his office, only on the grounds of proved misbehaviour or incapacity.
 Parliament is empowered to regulate the procedure for the investigation and proof of such
misbehaviour or incapacity.
 A judge may be removed from his office only by an order of the president.

Jurisdiction under Articles 226 and 227

Articles 226 and 227 are the parts of the constitution which define the powers of the High Court.
Article 226, empowers the high courts to issue, to any person or authority, including the government (in
appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto, certiorari or any of them.

Habeas Corpus - A simple dictionary meaning of the writ of Habeas Corpus is "a writ requiring a person
under arrest of illegal detention to be brought before a judge or into court, especially to secure the person's
release unless lawful grounds are shown for their detention".
Mandamus - A writ issued as a command to an inferior court or ordering a person to perform a public or
statutory duty.
Prohibition - A writ of prohibition is issued primarily to prevent an inferior court or tribunal from
exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice.
Quo warranto - This simply means "by what warrant?". This writ is issued to enquire into the legality of
the claim of a person or public office. It restrains the person or authority to act in an office which he / she is
not entitled to; and thus, stops usurpation of public office by anyone. This writ is applicable to the public
offices only and not to private offices.
Certiorari- Literally, Certiorari means "to be certified". The writ of certiorari can be issued by the
Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or
quasi-judicial authority.

The High Court is conferred with this power under Article 226 of the Constitution of India for enforcement
of any of the fundamental rights conferred by part III of the Constitution or for any other purpose.
Article 227 determines that every High Court shall have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law
related to armed forces).
The High Court, can, under Article 227 –

 Call for returns from such courts,

 Make and issue general rules and prescribe forms for regulating the practice and proceedings of such
courts.
 Prescribe forms in which books, entries and accounts be kept by the officers of any such courts.
 Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts

Article 226 Article 227

‘original jurisdiction’ when a petition is filed under
Article 226
formulated to protect fundamental rights by issuing
appropriate writs
can be used whenever issuance of an appropriate
writ is required
petitions under Article 227 have supervisory
jurisdiction.
intended to be used in appropriate cases for keeping
the subordinate courts and tribunals within the
bounds of their authority
is to be exercised only in cases of grave injustice
or failure of justice
eg- court or tribunal exceeds their jurisdiction and
passes such order which is ultra vires;
A court or tribunal has failed to exercise the
jurisdiction vested within them;

L. Chandra Kumar v. Union of India

Contempt of Court
 The expression ‘contempt of court’ has not been defined by the Constitution.
 As per the Contempt of Courts Act 1971, contempt refers to the offence of showing disrespect to the
dignity or authority of a court.
 The act divides contempt into civil and criminal contempt.

 Civil contempt: It is willful disobedience to any judgment, decree, direction, order, writ or other
processes of a court or wilful breach of an undertaking given to the court.
 Criminal contempt: It is any publication which may result in:
 Scandalising the court by lowering its authority.
 Interference in the due course of a judicial proceeding.
 An obstruction in the administration of justice.
However, innocent publication and distribution of some matter, fair and reasonable criticism of judicial
acts and comment on the administrative side of the judiciary do not amount to contempt of court.
Article 129 declares that the supreme court as a “Court of record” and that it shall have all the powers of a
court of record including the power to punish for its contempt of itself.
Further Article 142(2) empowers the Supreme Court to investigate and punish for any contempt of itself
i.e., contempt of Supreme court of itself.
Similarly, Article 215 declares High courts as a “Court of record” and that it shall have all the powers of
such a court including the powers to punish for contempt for itself.
Punishments for Contempt of Court
 The supreme court and high courts have the power to punish for contempt of court, either with simple
imprisonment for a term up to six months or with fine up to 2,000 or with both.
 In 1991, the Supreme Court has ruled that it has the power to punish for contempt not only of itself but
also of high courts, subordinate courts and tribunals functioning in the entire country.
 On the other hand, High Courts have been given special powers to punish contempt of subordinate
courts, as per Section 10 of The Contempt of Courts Act of 1971.

Delhi Judicial Association v. State of Gujarat

the first time sent five police officers including an I P.S. to jail as they were found as they were found guilty
for committing criminal contempt of court of Judicial Magistrate Court for harassing and hand-cuffing Chief
Judicial Magistrate of Nadiad. district Kheda, in the State of Gujarat. On September 25, a horrible incident
took place in town of Nadiad in the State of Gujarat. The Police inspector of Nadiad arrested. assaulted and
handcuffed Chief Judicial Magistrate and tied him with a thick rope like an animal and took him openly to the
hospital for medical examination on the alleged charge of having and took consumed him openly liquor to in
breach of State Prohibition Law. The incident undermined the dignity of courts in the country. A member of
Bar Associations and the Indian Judges Associations approached to the Supreme Court by petitions under Art.
32 for saving the dignity and honour of the Judiciary. The Court issued notices for contempt to seven police
officers. Since there was dispute between the parties with regard entire incident the Court appointed Justice
RM M. Sahai to inquire into the issue and submit a report. the 7 officers were found guilty of committing
criminal contempt and were sent to jail.

Surendra v. Nabakrishna
THIS is a proceeding for contempt started against the former Chief Minister of orissa, Sri Naba Krishna
Choudhury in respect of a speech made by him in the orissa Legislative Assembly on. An extract from the
speech was published in a local daily known as 'matrubhumi'. The Editor and the printer and Publisher of the
said daily were also called upon to show cause why they may not be committed for contempt, but they have
both tendered an unqualified apology. It was held that there were many advantages to the public, which has
the deepest interest in knowing what passes in the Parliament if a true report of parliamentary proceedings is
published in a newspaper. Subsequently, the Parliamentary Proceedings (Protection of Publication) Act,
1956 was passed which provided that no person shall be liable to any proceeding civil or criminal in any
court in respect of the publication of a substantially true report of the proceedings of either House of
Parliament unless it is proved that publication of such proceeding expressly ordered to be expunged by the
speaker.

Unit VI: Election and Electoral Reforms

Election Commission: Composition, functions and powers

The Election Commission of India, abbreviated as ECI is a constitutional body responsible for
administering elections in India according to the rules and regulations mentioned in the Constitution of
India. The major aim of election commission of India is to define and control the process for elections
conducted at various levels, Parliament, State Legislatures, and the offices of the President and Vice
President of India. It can be said that the Election Commission of India ensures smooth and successful
operation of the democracy.

Appointment & Tenure of Commissioners

 1. The President has the power to select Chief Election Commissioner and Election Commissioners.
2. They have tenure of six years, or up to the age of 65 years, whichever is earlier.
3. They have the same status and receive pay and perks as available to Judges of the Supreme Court of
India.
4. The Chief Election Commissioner can be removed from office only through accusation by
Parliament.
5. Election commissioner or a regional commissioner shall not be removed from office except on the
recommendation of the Chief Election Commissioner.

Article 324 of the Indian Constitution has made the following provisions with regards to the formation of the
election commission:

 The President appoints the Chief Election Commissioner and other election commissioners are appointed
by the President of India
 When any other EC is so appointed, the Chief Election Commissioner shall act as the Election
Commission’s Chairman.
 The President of India can also appoint regional commissioners in order to assist the Commission. If
necessary, after consulting with the Election Commission.
 The tenure of office and the conditions of service of all the commissioners shall be decided by the President
of the country.

Powers, Functions of Election Commission

Administrative Powers
1. To decide the territorial areas of the electoral constituencies throughout the country on the basis of the
Delimitation Commission Act of Parliament.
2. To organize and periodically amend electoral rolls and to register all qualified voters.
3. To inform the dates & schedules of election and to scrutinize the nomination papers.
4. To grant recognition to political parties & allot election symbols to them.
5. To act as a court for settling disputes related to granting of recognition to political parties and allotment
of election symbol to them.

Key functions of the Election Commission of India are as under:

1. The Election Commission of India is considered the guardian of free and reasonable elections.
2. It issues the Model Code of Conduct in every election for political parties and candidates so that the
decorum of democracy is maintained.
3. It regulates political parties and registers them for being eligible to contest elections.
4. It publishes the allowed limits of campaign expenditure per candidate to all the political parties, and
also monitors the same.
5. The political parties must submit their annual reports to the ECI for getting tax benefit on
contributions.
6. It guarantees that all the political parties regularly submit their audited financial reports.

Other powers handled by the Election Commission of India are as follows:

1. The Commission can repress the results of opinion polls if it deems such an action fit for the cause
of democracy.
2. The Commission can recommend for disqualification of members after the elections if it thinks
they have violated certain guidelines.
3. In case, a candidate is found guilty of dishonest practices during the elections, the Supreme Court and
High Courts consult the Commission.
4. The Commission can postpone candidates who fail to submit their election expense accounts
timely.
5. It prepares a program to publicize the policies of all the political parties on various media like TV and
radio during elections.
6. Election Commission advises the President on matters concerning the disqualification of MPs.
 7. Election Commission Advises the Governor on matters concerning the disqualification of MLAs.
8. Election Commission supervises the machinery of elections throughout the country to ensure the
conduct of free and fair elections.
9. Election Commission registers political parties and granting them the status of national or state parties
(depending on their poll performance)

Electoral Reforms: Some Reflections

In India, the term “electoral reforms in India” refers to the evolution and modification of the electoral system.
The Electoral Reforms seek to promote clean politics, free and fair elections, and ideal legislators. It
contributes to making Indian democracy a true democracy in both letter and spirit. Additionally, it has
regulated the electoral process to eradicate election-related fraud.

Electoral Reforms in India Before 2010

1. Lowering of the Voting Age: The Lok Sabha and assembly elections’ voting age was lowered from 21 to
18 years old by the 61st Constitutional Amendment Act of 1988.
2. Increase in Proposers: In 1988, there was a rise in the number of candidates running for election to the
Rajya Sabha and Legislative Councils.
3. Electronic Voting Machines (EVM): A 1989 law made it possible to employ EVMs in elections. In the
1999 general elections (statewide) for the Goa Assembly, the electronic voting machines (EVMs) were
utilised for the first time.
4. Elector’s Photo Identity Card (EPIC): The Election Commission is undoubtedly accelerating the electoral
process by using electors’ photo identity cards. The Election Commission decided to provide photo
identification cards to voters nationwide in 1993 to prevent fraudulent voting and voter impersonation
during elections.
5. Liquor sales are prohibited: During the 48 hours leading up to the hour set for the poll’s conclusion, no
liquor or other intoxicants may be sold, given or distributed in any store, restaurant or other location,
whether private or public.
6. A conviction for violating the National Honours Act of 1971 disqualifies a person from running for office
in the Parliament or state legislatures for a period of six years

Electoral Reforms in India After 2010

1. The Commission has set a limit on the amount of money that can be spent in elections. It ranges from Rs.
50 to 70 lakh for the Lok Sabha elections (based on the state from which they are running), and from Rs.
20 to 28 lakh for an assembly election.
2. Limitations on exit polls: Prior to the 2019 Lok Sabha elections, the EC released a statement stating that
exit poll findings could only be broadcast after the conclusion of the election’s final phase. To prevent
potential voters from being misled or prejudiced in any way, this was done.
3. Voting by postal ballot: Across 2013, the EC voted to broaden the scope of voting by postal ballot across
the nation. Prior to this, only Indian diplomats serving overseas and a small number of defence personnel
could cast postal ballots. Service voters, special voters, wives of service voters and special voters, those
subject to preventive detention, people on election duty, and Notified voters are the six groups of voters
who can now use the postal ballot..
4. Raising Awareness: To commemorate the foundation day of the EC, the government chose to honour
January 25 as “National Voters Day.”
5. The creation of NOTA: None of the above (NOTA) is a ballot choice that enables voters to express their
dislike of each and every candidate in a voting process. However, India’s NOTA does not grant the “right
to reject.” Regardless of the number of NOTA ballots cast, the candidate with the most votes wins the
election..
6. Voter verifiable paper audit trail (VVPAT) introduction: VVPAT is a technique for providing feedback to
voters using electronic voting machines. A VVPAT is meant to be an impartial system of verification for
voting machines that enables voters to check that their vote was cast accurately and to audit the results that
have been electronically stored. It includes the candidate’s name for whom the vote was made as well as
the party or candidate’s symbol.
It is widely acknowledged that the country’s voting system has several flaws that need to be fixed over the
years. But it should be done gradually and continuously, after much discussion and deliberation. The
significance of the concerns related to electoral changes has been recognised by successive governments at
the Centre. Election reform recommendations from the Election Commission and various committees have
occasionally been taken into consideration or also put into practise. The administration acknowledged that
electoral changes are an ongoing process and that all parties involved, including the government, the Election
Commission of India, the Law Commission, etc., should work to adopt any suggestions for electoral reforms
on which consensus can occasionally be reached.

Unit VII: State Legislature

Article 168- Constitution of Legislatures in States.
(1) For every State there shall be a Legislature which shall consist of the Governor, and—
(a) in the States of Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Karnataka and Uttar Pradesh, two
Houses;
(b) in other States, one House
(2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council
and the other as the Legislative Assembly, and where there is only one House, it shall be known as the
Legislative Assembly.

Unicameral Legislature
Unicameral legislature refers to having only one legislative chamber which performs all the functions like
enacting laws, passing a budget, and discussing matters of national and international importance. It is
predominant in the world as most countries have a unicameral legislature. It is an effective form of the
legislature as the law-making process becomes easier and reduces the possibility of obstacle in lawmaking
process. Another advantage is that it is economically feasible to maintain a single chamber of the legislature.
It is the most prevailing system in India as most of the States of India have a unicameral legislature. The
members of the unicameral legislature (Legislative Assembly) elected directly by the citizens of the State.

Bicameral Legislature
By bicameral legislature, we refer to the State having two separate law-making Houses to perform the
functions like passing the budget and enacting laws. India has a bicameral legislature at the Centre level while
the State can make the bicameral legislature. In India, only 7 States have a bicameral legislature. It may be
seen that a bicameral legislature may not be as effective as a unicameral legislature. However, it works as a
barricade in some cases as it somehow makes the law-making process more complex.

Article 169 - creation or abolition of the Legislative Council. For the creation or abolition of the Legislative
Council, the Legislative Assembly must pass a resolution that must be supported by more than 50% of the
total strength of the assembly. It must be supported by more than 2/3rd of the total members present in voting.
Therefore it talks about the absolute and special majority. The resolution to create or to abolish the Legislative
Council needs the assent of the President as well.
The State Legislature which has only one House is known as the Legislative Assembly (Vidhan Sabha) and
in the State which has two houses, the Upper House is known as the Legislative Council (Vidhan Parishad)
and the lower House is known as the Legislative Assembly (Vidhan Sabha).
Similar is the procedure for the abolition of the Upper houses. The State of Punjab and West Bengal abolished
the second chambers in 1969 and 1970 respectively. Legislative Council in Tamil Nadu was abolished in
1986.

Composition of State Legislative Assembly Article 170

1. Subject to the provisions of article 333, the Legislative Assembly of each State shall consist of not more
than five hundred, and not less than sixty, members chosen by direct election from territorial constituencies
in the State.
2. For the purposes of clause (1), each State shall be divided into territorial constituencies in such manner
that the ratio between the population of each constituency and the number of seats allotted to it shall, so
far as practicable, be the same throughout the State.
3. Upon the completion of each census, the total number of seats in the Legislative Assembly of each State
and the division of each State into territorial constituencies shall be readjusted by such authority and in
such manner as Parliament may by law determine.
4. Provided that such readjustment shall not affect representation in the Legislative Assembly until the
dissolution of the then existing Assembly.

The composition of the Legislative Council Article 171 of the Indian Constitution. The total members in
the Legislative Council should not exceed one-third of the total members in the state Legislative Assembly.
There is another criterion for the composition of the Legislative Council. The member in the Legislative
Council should not be less than 40 in any case. There is an exception in the composition of Vidhan Parishad.
The Legislative Council of Jammu and Kashmir has only 36 Member in Legislative Council, unlike the other
Legislative Council.

(2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be
as provided in clause (3).

(3) Of the total number of members of the Legislative Council of a State—

a) One-third of the members of the Legislative Council should be elected from the district boards,
municipalities and other local authorities which is specified by the Parliament according to law.
b) One-twelfth of its members shall be elected from the person who has been residing in the same state
for the time period of at least three years and graduated from the university which is in the territory of
India.
c) One- twelfth of its total member should be elected from the person who is engaged in the teaching
profession for at least three years in the educational institution of the state itself.
d) One third should be elected by Legislative Assemblies and none of them should be a member of the
Legislative Assembly.
e) The remainder of the members should be nominated by the Governor according to the established law.

The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall be chosen in such territorial
constituencies as may be prescribed by or under any law made by Parliament, and the elections under the said
sub-clauses and under sub-clause (d) of the said clause shall be held in accordance with the system of
proportional representation by means of the single transferable vote.

The members to be nominated by the Governor under sub-clause ( e) of clause (3) shall consist of persons
having special knowledge or practical experience in respect of such matters as the following, namely:—
Literature, science, art, co-operative movement and social service.
Article 172- Duration of State Legislatures.
(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the
date appointed for its first meeting and no longer and the expiration of the said period of five years shall
operate as a dissolution of the Assembly:
Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by
Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period
of six months after the Proclamation has ceased to operate.
(2) The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of
the members thereof shall retire as soon as may be on the expiration of every second year in accordance with
the provisions made in that behalf by Parliament by law

Article 173- Qualification for membership of the State Legislature

A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he—
(a) is a citizen of India;
(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and, in the case
of a seat in the Legislative Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by
Parliament.

Article 191- Disqualifications for membership

After being elected/ nominated as a member of the legislature, one can not be a permanent member of the
legislature. There are certain reasons mentioned in the Constitution by which a person may be disqualified
from his/her membership to the Legislature.
Disqualification of MLA/ MLC can be made on the following grounds:

1. If one holds the office of profit under the state or central government.
2. If one is of unsound mind and is declared so by the competent court.
3. If one is an undischarged insolvent.
4. If one is not a citizen of the country anymore or when he/ she voluntarily took the citizenship of
another country.
5. If one is disqualified by the law of the Parliament. Example- Anti defection law.

Article 192- Decision on questions as to disqualifications of members

(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject
to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the
decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election
Commission and shall act according to such opinion.

Powers of the state legislature

1. Legislative Powers: The State Legislature has the authority to enact legislation concerning the State List
and the Concurrent List. It has the authority to enact any bill on any subject on the State List, which
becomes an Act once signed by the Governor. The Legislative Assembly is in charge of creating laws.
The Legislative Assembly introduces most non-money regular measures and plays a vital role in their
passage.

2. Control over the Budget: The legislature has control over the budget of the executive (Government) and
without its approval the executive cannot spend even a single ‘paisa’. In England and India, the
Members of the Parliament can impose a cut on any demand on the budget but they cannot increase it.

3. Financial Powers: The State Legislature has the authority to collect taxes on all of the State List’s topics.
It is the guardian of the state’s money. The state government cannot collect money or levy or collect taxes
without the agreement of the State Legislature. The state budget and all other financial policies and
programs are only operative if the State Legislature has approved them. In emergencies declared under
Articles 352, 356 or 360, however, the state’s financial authorities become subject to the Union.

4. Control over the Executive: The State Legislative Assembly has control over the State Council of
Ministers. The State Legislative Council has been given a little function. In the State Legislative Assembly,
the state Chief Minister is the majority leader. Before the Legislative Assembly, the State Council of
Ministers is jointly accountable. The latter can bring the ministry down by passing a vote of no confidence
or rejecting a measure, policy, or budget proposed by the Council of Ministers. The legislative assembly
has the position of authority and holds the right to question its members. Also, the State legislative
assembly has the power to reject any government policy (of the State) that can lead to a no-confidence
motion.
5. Judicial: In certain countries the legislature has to perform certain judicial functions. For example, in
India and America the Parliament and the Congress can remove the President by a process of
Impeachment.

6. Electoral: In certain countries, the legislature elects the President, the Vice-President and the Judges. In
India, the Parliament takes part in the election of the President and the Vice-President. (In the election of
the President, besides the Parliament, the State Legislatures also take part, but in the election of the Vice-
President, only the Parliament takes part).

7. Other Powers: Other functions are exercised by the State Legislature, notably the Legislative Assembly.
Members of the Legislative Assembly choose the President of India (MLAs), elected by the people. They
also elect state representatives to the Rajya Sabha. The Union Parliament can only enact specific
constitutional revisions if at least half of the state legislatures agree.

The functions of the states’ Legislative Council are only advisory in nature. If any Bill is passed by the
Legislative Assembly and sent to the Council, and the Council refuses to give its approval, then the Assembly
has the right to reconsider it. The assembly may pass it with or without the amendments proposed by the
Council, and again send it to the Council. When a bill approved by the Assembly is sent to the Council for the
first time, it may retain it for three months, but in the case when it is sent for the second time and is kept in
the Council for one month only, the bill is deemed as having been passed. This evidently demonstrates the
Assembly’s absolute superiority over the LC. In the case of Money Bills, the State Assembly’s powers are the
same as those of the Lok Sabha.

Legislative Privileges

 Parliamentary privileges (Art 105 & 194) are special rights, immunities, exemptions enjoyed by the
members of the two houses of Parliament and their committees.
 These rights are also given to those individuals who speak and participate in any committee of the
Parliament, which includes the Attorney General of India and the Union Ministers.
 President, who is integral part of the parliament, does not enjoy these.

Types of Parliamentary Privileges in India

Collective Privileges
The privileges belonging to each House of Parliament collectively are
 The ability to publish reports, debates, and proceedings, as well as the ability to prevent others from
doing so. It can publish truthful reports of Parliamentary proceedings without the House's
authorization under the freedom of the press. However, in the case of a House meeting held in secret,
this right of the press does not apply.
 Keep strangers out of the gathering and organize covert sessions to address vital issues.
 Make rules to govern its own procedure and commercial activity, as well as to adjudicate on such
issues.
 Right to immediate notification of a member's arrest, custody, conviction, imprisonment, and release.
 Initiate inquiries and compel a person's attendance.
 The courts are not allowed to investigate a House's or its committees' proceedings.
 Without the consent of the Presiding officer, no one (whether a member or an outsider) can be
arrested, and no legal process (civil or criminal) can be served within the House's boundaries.

Individual Privileges
The privileges belonging to the members individually are
 During the session of Parliament, from 40 days before the beginning to 40 days after the finish, no
member may be arrested. This privilege is only granted in civil matters; it is not granted in criminal
or preventive detention situations.
 In Parliament, members have the right to free expression. No member of Parliament or its
committees is accountable in any court for anything said or voted in Parliament or its committees.
 This independence is limited by the Constitution's provisions as well as the norms and standing
orders that govern Parliament's functioning.
 Members of Parliament are exempt from jury duty when Parliament is in session. They have the right
to decline to give evidence and testify in court.

Article 105- Powers, privileges, etc., of the Houses of Parliament and of the members and committees
thereof.
1)Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure
of Parliament, there shall be freedom of speech in Parliament.
According to Clause (1) of Article 105, members of the Parliament have the freedom of speech. Moreover,
they cannot be held liable for anything said or done (vote) in the Parliament. It means the members can
express their views either in favour of an issue or against it without any restrictions.

2) No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or
any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of
the publication by or under the authority of either House of Parliament of any report, paper, votes or
proceedings.
Saying anything or voting is a form of expressing one’s views. It is sufficiently covered under Freedom of
speech. Publication of proceedings includes publication by newspapers, magazine, TV, wireless telegraphy
etc. According to this Article, the members of the Houses cannot be made liable if they publish any
proceedings of the House under the Authority of the House. Since the general public has the right to know
that what happened in a parliamentary-proceedings, so publication of Parliamentary proceedings is immune
under this Article.

Article194- Powers, privileges, etc., of the Houses of Legislatures and of the members and committees
thereof.
(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be
so liable in respect of the publication by or under the authority of a House of such a Legislature of any
report, paper, votes or proceedings.

The other Privileges as per the rules made by house are:

 Freedom from Arrest: Any member of the House cannot be arrested in a civil proceeding within 40 days
before and after the session of the House. If he is arrested, he must be released to let him attend the
Session. But a member can be arrested in a criminal proceeding, but the detaining authority must notify
the House the reason, time, place of his detention.
 Right to exclude strangers: When a secret sitting is going on the presiding officer of the house to order
the strangers to withdraw from the chamber, lobby. (Rule 248 Lok Sabha)
 Right to Prohibit the Publication of proceedings: The presiding officer of the house may declare that a
certain part of the proceedings is not to be published. Any person doing so may be punished under the
Contempt of house as per as the rules made by the house.
 Right to regulate internal proceedings: The Houses have the power to make rules to regulate their
proceedings. No one can interfere in that even the judiciary. Article 122 and 212 provides that the
validity of proceedings cannot be called in question on ground of any irregularity. The presiding officers
are given the power to summon, adjourn the proceedings by the Constitution itself.
 Right to punish for contempt of the House: If any person either the member or a non member break any
rule of the house, he may be punished according. For example, a member may be expelled from the
House.

Gunpathi K. Reddi v. Nafisul Hasan

One member was arrested for contempt of the House. He was kept in a hotel after arrest. He filed a writ
petition before S.C. on the ground that he was not produced before the magistrate within 24 hours of his
arrest. Supreme Court ordered his released and held that Article 105 and 194 are subject to Fundamental
rights contained in Part III of the Constitution.

M.S.M Sharma v. S.K. Sinha

The Supreme Court held that in case of conflict between Fundamental Rights under 19(1) (a) and Article
105 (Article 194), the latter would have primacy. But this is not a strict rule and applicable in all cases that
Privileges would prevail over the fundamental rights. The decision in M.S.M case is only for Article
19(1)(a).

P.V. Narasimha Rao v. State

A five-judge bench of the Supreme Court by 3:2 majority held the scope of protection of immunity available
to the Members of Parliament is quite wide and is not confined only against judicial proceedings but is
available to them against all civil action and criminal proceedings for anything said or any vote given by
them in the House of Parliament. The object of the protection is to enable members to speak their mind in
Parliament freely and fearlessly. The MP’s who had taken bribe and voted in Parliament against no
confidence motion brought against the Government were entitled to the protection of Article 105(2) and
were not answerable in a court of law for alleged conspiracy and agreement. But MP’s who had given bribe
but not voted on no confidence motion were not entitled to the protection of Article 105(2) and an action
could be initiated against them under the relevant law.

Unit VIII: State Executive

The Governor
Article 153 of the Indian Constitution provides for every State to have a Governor. Just like the President is
the nominal head of the republic, the Governor is the nominal head of a state. This means that he/she has
powers and functions similar to the President of India but operates at the state level, with the real power lying
in the hands of the state Chief minister and his/her council of ministers.

Article 155- Appointment of Governor

The Governor of a State shall be appointed by the President by warrant under his hand and seal.

Article156- Term of office of Governor

(1)The Governor shall hold office during the pleasure of the President.
(2) The Governor may, by writing under his hand addressed to the President, resign his office.
(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years
from the date on which he enters upon his office:
Provided that a Governor shall, continue to hold office until his successor enters upon his office
notwithstanding the expiration of his term.

Article 157- Qualifications for appointment as Governor

No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the
age of thirty-five years

Powers and Functions

Executive Powers
 All executive actions of a state's administration are legally taken in the name of Governor.
 He can create regulations governing how Orders and other instruments produced and executed in his
name are verified.
 He appoints the leader of the majority party in the State Legislative Assembly as the Chief Minister
of the State.
 He appoints other members of the Council of Ministers on the recommendation of the Chief
Minister.
  He should appoint a Tribal Welfare Minister in the states of Chattisgarh, Jharkhand, Madhya
Pradesh, and Odisha. The 94th Amendment Act of 2006 exempted the state of Bihar from this
provision.
 He acts as the chancellor of universities in the state. He also appoints the vice-chancellors of
universities in the state.
 He appoints the advocate general of a state, state election commissioner and chairman and members
of the state public service commission.
 He directly rules a State when there is the imposition of the President’s rule in the State.
 He may ask the chief minister to bring to the council of ministers any topic on which a minister has
made a decision but which has not been reviewed by the council.
 He has the authority to propose to the president the declaration of a state of constitutional
emergency.
 As an agent of the President, the governor has considerable administrative powers in a state during
the President's reign.

Ram Jawya Kapur v. State of Punjab

Has held that our constitution has adopted the British system of Parliament form of Government and the
basic principle of this type of Government is that the President and Governors are constitutional heads and
the real executive powers vest with the Council of Ministers.

Shamsher Singh v. State

The SC has held that the President and the Governors are only constitutional heads and they exercise their
powers and functions with the aid and advice of the council of ministers and not personally save in cases
where the governor is required by the constitution to exercise his function in his discretion. Wherever the
Constitution requires the satisfaction of the President or Governor but it is the satisfaction of council of
minister.

Legislative Powers
 Under Article 175 Right of the Governor to address and send messages to the house or houses of the
state legislature.
 Under Article 213 he can promulgate ordinances when the state legislature is not in session. These
ordinances must be approved by the state legislature within six weeks from its reassembly.
 Every bill passed by the state legislature will become law only after his signature. But, when a bill is
sent to the Governor after it is passed by the legislature, he has the option to give his assent to the bill
or withhold his assent to the bill or return the bill for the reconsideration of the legislature.
 When the offices of Speaker and Deputy Speaker become empty, he has the authority to designate
any member of the State legislative assembly to preside over its operations.
 Similarly, he can select any member of the state legislature council to preside over its operations if
both the Chairman and Deputy Chairman positions become vacant.
 He nominates one-sixth of the state legislative council members from among those with specific
expertise or practical experience in literature, science, art, cooperative movement, and social service.
 He can nominate one member to the State Legislative Assembly from the Anglo-Indian Community.
 In consultation with the Election Commission, he makes decisions on the disqualification of
members of the state legislature.
 He presents to the state legislature the reports of the State Finance Commission, the State Public
Service Commission, and the Comptroller and Auditor-General concerning the state's accounts.

Financial Powers
The governor's financial authorities and functions are as follows:
 He ensures that the Annual Financial Statement (state budget) is presented to the state legislature.
 Only with his previous approval may money legislation be submitted in the state legislature.
 No grant request may be filed unless he recommends it.
 He can make loans from the state's contingency fund to cover any unanticipated expenses.
 Every five years, he appoints a finance commission to assess the financial situation of the panchayats
and municipalities.
Ordinance Making Power

 Article 213 of the Indian Constitution empowers the Governor of the State to promulgate ordinances
when the State Legislative Assembly is not in session.
 In the 6 states (Karnataka, Andhra Pradesh, Telangana, Maharashtra, Bihar and Uttar Pradesh) which
have bi-cameral legislatures i.e, both State Legislative Assembly as well as State Legislative Council,
the Governor can promulgate ordinance when either of the houses is not in session or when both the
houses are not in session.
 He can promulgate ordinance when the Legislative Assembly is not in session in case of the unicameral
legislature or when both Legislative assembly and council are not in session in case of a bicameral
legislature
 He can roll-out an ordinance for only those matters on which state legislature can make laws
 His ordinances have the same effect on policies as state’s acts will have. If his ordinance legislates on
matters which state government has no power on, the ordinance stands null and void
 The ordinance introduced by him can be withdrawn anytime
 His power to promulgate ordinance is not a discretionary power. Council of Ministers’ (headed by CM)
advice is a pre-requisite

DC Wadhwa vs. the State of Bihar (1987), In this case, the petitioner, Dr D.C. Wadhwa was a professor of
economics in Pune and had filed a PIL challenging the general power of the Governor to re-promulgate
various ordinances by the governor of Bihar. The petitioner had extensively researched and published about
the misuse of the ordinance making power of the governor of Bihar because the government of Bihar had
promulgated 256 ordinances between 1967 and 1981 and these 256 ordinances were kept alive for periods
ranging between one and fourteen years. The general power of the Governor to re-promulgate the ordinance
was examined by the court as several ordinances had been re-promulgated over thirty times. The main issue
contested was whether the Governor could mechanically re-promulgate the ordinance for an indefinite
period of time, and thus take over the power from the legislature to legislate through the powers conferred
on him under Article 213. The Court held that the executive's legislative power to issue ordinance should be
used in exceptional circumstances and should not replace the law making power of the legislature.

Power of Governors to grant pardons

Article 161 of the Indian Constitution talks about the ‘Pardoning Power of the Governor.’ When a convict
has committed an offence, which goes against the law of state, the concerned punishment can be granted the
pardon, reprieve, respite and remission by the Governor of that particular state.
The very title of Article 161 of the constitution suggests that it confers a “power” on the Governor to grant
pardons, but the Governor is not empowered to pardon a death sentence or even grant pardon, reprieve,
respite, suspension, remission or commutation in respect to punishment or sentence by a Court martial.
However, the President can do so.
 Can grant pardons to any person convicted of any offence against any law. This has to be related to a
matter to which the executive power of the State extends.
 The governor has no powers related to sentences of court-martial.
 Can only exercise the power of pardon after consulting the Council of Ministers of the State.
 The Governor forwards the mercy plea to the Home Ministry, seeking the Cabinet's advice.
 The Governor can reconsider his decision to grant pardon on receiving new information.

K. M- Nanavati v. State of Bombay

the petitioner was convicted of murder and was sentenced to imprisonment for life by the Bombay High
Court. At the time of the decision of the High Court the petitioner was in naval custody. Soon after the
judgment was pronounced by the High Court the petitioner made an application for leave to appeal to
Supreme Court. On the same day the Governor issued an order under Article 161 suspending the sentence
subject to this that the accused shall remain in the Naval Jail Custody till the disposal of his appeal by the
Supreme Court. The Court held that power to suspend a sentence by the Governor under Article 161 is
subject to the rules made by the Supreme Court with respect to cases which are pending before it in appeal.
It is open to the Governor to grant a full pardon at any time even during the pendency of the case in the
Supreme Court in exercise of what is ordinarily called mercy jurisdiction. But the Governor cannot exercise
bis power of suspension of the sentence for the period when the Supreme Court is seized of the case. The
order of the Governor could only operate until the matter became sub judice in the Supreme Court and it did
become so on the filing of the petition for special leave to appeal. After the filing of such a petition and till
the judicial process is over the power of the Governor cannot be exercised.

Discretionary power of Governor

The Governor can use these powers as discretionary:
 If no party obtains an absolute majority, the Governor may choose the Chief Minister at his
discretion.
 During an emergency, he has the authority to disregard the recommendations of the ministerial
council. In such situations, he functions as the President's representative and becomes the true ruler
of the state.
 He utilises his authority to give a report to the President on the state's affairs.
 He might refuse to sign a measure and instead refer it to the President for approval.

BP Singhal v. UOI
The writ petition in this case was filed as a Public Interest Litigation. The President of India on the advice of
Union Council of Ministers removed the Governors of 4 states i.e. Haryana, Uttar Pradesh, Gujarat and Goa
on 2nd July 2004.This case is counted in one of the landmark cases regarding removal of governors and
president’s pleasure. Supreme Court’s decision was in the favour of respondent i.e. union of India but also
said that the removal must not be mala fide and arbitrary.

Role of the Governor: Some Controversies

State Council of Ministers

Constitution under Article 163 further provides for –

1. A Council of Ministers, led by the Chief Minister, shall assist and advise the Governor in the discharge
of his duties, except to the extent that he is obliged by or under this Constitution to exercise all or any of
his duties in his discretion.
2. If there would be any speculation as to whether a matter is or is not one in which the Governor is
required to act in his discretion by or under this Constitution, the Governor's decision in his discretion
shall be final, and the validity of anything done by the Governor shall not be called into question on the
basis that he should or should not have acted in his discretion.
3. The question whether any and if so what, advice was tendered by Ministers to the Governor shall not be
inquired into in any court.

Article 164 provides for:

(1) The overall number of Ministers in a State's Council of Ministers, including the Chief Minister, must
not exceed 15% of the total number of members of the Legislative Assembly of that State
(2) The State's Legislative Assembly will hold the Council of Ministers collectively accountable.
(3) The Governor shall administer the oaths of office and secrecy to a Minister before he assumes his
office, using the forms set out in the Third Schedule for that purpose.
(4) A Minister who is not a member of the State Legislature for a period of six months or more ceases to
be a Minister at the end of such period.
(5) Ministers' wages and allowances shall be as determined by the State Legislature from time to time by
legislation and shall be as indicated in the Second Schedule until the State Legislature so determines.

Qualifications
To be a Minister of a State Council, one should be a member of the State legislature, if he is not a member
of state legislature while becoming a member of the state legislature, he has to become one within the period
of six months from the date of entering the office.
Further, the qualifications needed to be a member of the state legislature are :
a) He must be a citizen of India.
(b) He must bear true faith and allegiance to the Constitution of India.
(c) He must be not less than 30 years of age in the case of the legislative council.
(d) He must not be less than 25 years of age in the case of the legislative assembly.

Appointment to the State Council of ministers

 The Chief Minister is appointed by the governor.

 The other ministers are appointed by the governor on the advice of the chief minister.
 The governor can appoint only those persons as ministers who are recommended by the chief minister.
Removal
Members of the state council of ministers can hold office during the pleasure of the governor, but the
governor exercises his power on the recommendation of the chief minister.

Composition
Composition of State Council Of ministers

 Cabinet ministers, ministers of state, and deputy ministers make up the council of ministers. The
distinction between them is found in their rankings.
 The cabinet ministers are in charge of the major departments.
 The independent charge is normally assigned to ministers of state.
 Cabinet ministers are assisted by deputy ministers.

Role And Functions of State Council Of Ministers

 Formulation of Policies- Ministers are in charge of formulating the government's policies.The Cabinet
makes decisions on all key issues, including public health, disability and unemployment benefits, plant
disease control, water storage, land tenures and production, and the supply and distribution of goods.

 Administration and Maintenance of Public Order- The executive power must be used in a way that
ensures that state laws are followed. The Governor is empowered by the Constitution to create -rules for
the more efficient conduct of government activities. The Council of Ministers advises on all such
regulations.

 Appointments- The Governor has the authority to appoint the Advocate-General and State Public
Service Commission members. The Governor appoints the Vice-Chancellors of the State Universities.
These appointments cannot be made at the Governor's discretion. On the advice of his ministers, he must
carry out these duties.

 Guiding the Legislature- The majority of the bills voted by the legislature are government bills drafted
by ministries.

Appointment of Chief Ministers and Other Ministers

Who is called a Chief Minister?
He is the head of the state government. While the governor is the nominal executive of the state government,
the person who becomes the chief minister is the real executive of the government.

Appointment of CM
Just like the Prime Minister, provisions of whose appointment are not mentioned in the Indian Constitution,
Chief Minister’s appointment particulars are not mentioned in the Constitution. According to Article 164 in
the Indian Constitution, Governor appoints Chief Minister. However, the Governor cannot appoint any
random person as the Chief Minister but has to follow a provision.
A leader of the party that has got the majority share of votes in the assembly elections, is appointed as the
Chief Minister of the state.
 When no party gets a majority in the elections, governor exercises his own discretion and appoint a
Chief Minister accordingly.
 In a case where no party has won the majority votes, Governor appoints the member of the largest
party or one from the coalition (if occurs) as the Chief Minister and then he is given 1 month time to
prove confidence in the house.
 If the incumbent dies in the office, Governor at his own discretion can appoint a Chief Minister
however, the ruling party nominates a member and Governor usually appoints that person as the
Chief Minister. This person then has to prove confidence within a specified time.
 A person not belonging to either house (Legislative Assembly & Council) can also be appointed as
the Chief Minister, however, within six months of his tenure as a CM he should be elected to either
house without which he ceases to be a CM.
 Chief Minister can belong to any house in the State Legislature.

Article 164-
(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the
Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the
Governor.
The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not
exceed fifteen per cent. of the total number of members of the Legislative Assembly of that State. Provided
that the number of Ministers, including the Chief Minister in a State shall not be less than twelve
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of
secrecy according to the forms set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State
shall at the expiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to
time by law determine and, until the Legislature of the State so determines, shall be as specified in the
Second Schedule.
Tenure
Term of Chief Minister is not fixed and he holds his office during the pleasure of the governor.
 Governor cannot remove him any time.
 Governor cannot even dismiss him till the time he enjoys the support of the majority of the house.
 When CM loses his majority support, he has to resign and Governor dismisses him then.